Ramani Das vs State Of West Bengal & Anr

Madhumati Mitra, J

This is an application of under Section 397 read with Section 401 and Section 482 of the Code of Criminal Procedure filed by the petitioner Sri Ramani Das challenging the impugned judgment and order dated 27th February, 2015 passed by learned Additional District and Sessions Judge Kalyani, District - Nadia in connection with Criminal Appeal No. 7 of 2013 arising out of C-164 of 2009. By the impugned judgment and order the learned Judge dismissed the criminal appeal no.7 of 2013 and confirmed this judgment and order dated 13th March, 2013 passed by learned Magistrate Kalyani, District - Nadia in connection with complaint case No.164 of 2009 with modification. The facts which are necessary to dispose of this present revisional application may be summarized as under:-

The present opposite party no.2 filed a petition of complaint against the present petitioner for commission of the alleged offence punishable under section 138 of the Negotiable Instrument Act. In the said petition of complaint the complainant alleged that the petitioner/accused person deals in paddy processing trade under the name as M/S Laxmi Paddy Processing Unit. It has been stated by the complainant in his petition of complaint that there was a business transaction between the present petitioner and the complainant. Complainant supplied paddy to the present petitioner/accused for said paddy processing unit and also render financial assistance to the accused/petitioner as there was close relationship between them. It has been specifically alleged that the value of supply of paddy to the accused and the financial assistant rendered by the opposite party to him was amounting to Rs.4 Lakh. The transaction between the parties took place from the period 26th October, 2006 to 27th November, 2008. In discharge of the said existing liability the accused petitioner issued a cheque being no.032841 dated 24th February, 2009 of State Bank of India Ranaghat Branch, Nadia amounting to Rs.4,00,000/-(Rupees Four Lakh) to the complainant/opposite party no.2. The complainant/opposite party no.2 presented the cheque for encashment but the said cheque was dishonoured with remarks "payment stopped by the drawer". The intimation regarding the dishonour of cheque was communicated to the complainant on 24th February, 2009. Complainant/opposite party issued legal notice demanding the amount covered by the cheque. The accused/ petitioner sent a reply to that demand notice and denied his liability. Thereafter the opposite party no.2/complainant filed a petition of complaint before the learned Magistrate against the petitioner under section 138 of the Negotiable Instrument Act,

After conclusion of trial the learned Magistrate convicted the accused petitioner for committing offence punishable under Section 138 of NI Act and sentenced him to undergo simple imprisonment for 6 months and to pay a fine of Rs.8,00,000/- (Rupees Eight Lakh) towards the amount of the cheque in default of which he shall undergo simple imprisonment for one year for the offence. Learned Magistrate also directed to pay an amount of Rs.6,00,000/-(Rupees Six Lakh) to the complainant as compensation from the fine of Rs.8,00,000/-(Rupees Eight Lakh).

Being aggrieved by and dissatisfied with the judgment and order of conviction passed by the learned Magistrate the present petitioner/accused preferred the criminal appeal being no.7 of 2013 before the learned Additional District and Sessions Judge Kalyani, District Nadia. The said appeal was heard by the Learned Additional District and Sessions Judge, Kalyani. Learned Judge has been pleased to dismiss the said appeal on contest. The Leaned Additional Sessions Judge confirmed the Judgment and order of conviction passed by the learned Judicial Magistrate, Kalyani on 3rd March, 2013 with modification that the petitioner/accused would suffer simple imprisonment for six months and to pay a fine of Rs.7,00,000/-(Rupees Seven Lakh) in default to suffer simple imprisonment for six months and allowed compensation to the tune of Rs,6,00,000/-(Rupees Six Lakh) to the complainant.

The judgment and order passed by the Leaned Additional Sessions Judge in appeal are under challenge.

Leaned Advocate appearing for the petitioner has assailed the impugned judgment and order of conviction mainly on the ground that both the Learned Courts below have failed to appreciate the materials brought on record, According to his contention the Learned Courts below have failed to consider that there was no business transaction between the parties and the complainant/opposite party did not produce any document to show his source of income wherefrom he gave the huge amount to the accused petitioner. He has further contented that in the instant case the complainant has failed to adduce evidence to prove that the cheque in question was issued by the accused person to the petitioner in discharge of his legally enforceable debt and liability. The Learned Advocate for the petitioner has further contented that the accused petitioner had three signed cheques bearing nos. 032841, 032842 and 032843 and his Manager took cheque bearing no.032840, for encashment to Ranaghat Branch, State Bank of India, the cheque in question was lost and he made general diary in this regard at Chakdah Police Station, being G.D Entry No.510 of 2008 dated 8th September, 2008. It has been vigorously contented on behalf of the petitioner that the fact of missing of the impugned signed cheque from the custody of the petitioner has not been properly dealt with by the learned Courts below. The another contention of the learned Advocate for the petitioner is that the complainant/opposite party no.2 has not examined any independent witness to corroborate his case. The impugned judgments passed by the Learned Courts below have been assailed by the Learned Advocate for the petitioner on the ground that Learned Courts below have failed to appreciate the evidence on record in its true perspective.

In support of his contention the Learned Counsel appearing for the petitioner has placed his reliance on the decision of in M/S Kumar Exports V. M/S Sharma Carpets, reported in (SC) :Law Finder Doc Id# 177932; Krishna Janardhan Bhat V. Dattatraya G. Hegde, reported in (SC): Law Finder Doc Id # 137611; Raj Kumar Khurana V. State of (NCT of Delhi), (SC) : Law finder Doc Id # 192011; Nagisetty Nagaiah V. Stte of A.P., (A.P) , Law Finder Doc Id # 81798.

On the other hand the learned Counsel appearing for the opposite party/complainant has contended that the learned Magistrate has rightly passed the judgment holding that the accused petitioner is guilty for commission of the offence punishable under Section 138 of the Negotiable Instruments Act. He has further contented that while passing the judgment the Learned Magistrate has dealt with of the materials placed on record and thereafter came to his conclusion. The judgment and order of conviction passed by the Learned Magistrate have been confirmed in appeal with the modification regarding the amount. According to his contention both the Learned Courts below have passed the Judgment after considering the factual and legal issuance involved in the complaint case. The question of interference by the revisional Court in exercise of its power under Section 397/482 of the Code of Criminal Procedure does not arise at all. In support of his contention the Learned Counsel for the opposite party has placed his reliance on the decision in Rangappa Vs. Sri Mohan, reported in (2010)11 SCC 441; Kumar Exports Vs. Sharma Carpets, reported in (2009) 2 SCC 513; Modi Cements Ltd. Vs. Kuchil Kumar Nandi, reported in (1998) 3 SCC 249;

From the contention of the Learned Advocate appearing for the petitioner it appears that the petitioner has challenged the judgment and order of conviction passed by the Learned Additional Sessions Judge in Criminal appeal mainly on the grounds the Learned Courts below have failed to consider that the cheque in question was issued not in discharge of any existing liability. It has been contented by the Learned Advocate for the petitioner that the cheque in question was misplaced from his custody. From his contention it appears that the petitioner has not disputed his signature in the cheque in question. Signature of the petitioner in the disputed cheque is an admitted fact. In the present case the factual findings of the Learned Magistrate regarding the issuance of cheque have been affirmed by the Learned Appellate Court. The defence was taken by the accused petitioner before the Learned Trial Court that the cheque in question was lost or stolen from his custody. After considering the evidence on record, the Learned Magistrate observed that the accused had failed to establish that the cheque in question was stolen from his custody. In support of this contention the Learned Advocate for the petitioner has placed his reliance on paragraphs 11 and 12 of the Judgment in Nagisetty Nagaiah Vs. State of A.P. and Anr., reported in Law Finder Doc Id # 81798.

"11. In almost identical situation, the apex Court in C. Antony v. K.G. Raghavan Nair, (2002) 2 Andh LD (Crl.) 880 held that :

"8. Then again, it is to be noticed that the trial Court also took into consideration the plea of the appellant that the cheque in question was given in a blank state to Chandrappa Panicker and he being a close friend of the respondent in collusion with each other misused the said cheque to defraud the appellant. The trial Court also observed that non examination of Chandrappa Panicker has also weakened the case of the respondent especially in view of the fact that the Court had noticed that the said Chandrappa Panicker was seen in the premises of the Court house at the time of trial. This is also relevant factor on which the trial Court relied upon but the High Court did not consider the effect of the said default on the part of the respondent. The third circumstance relied upon by the trial Court is in regard to the difference in the ink found in the body of the cheque as well as in the signature of the appellant. It is the case of the respondent that the appellant had filled up the cheque in its entirety including its signature and had brought the cheque to the office of Vijay Kumar to be handed over to the respondent but the learned Magistrate on a perusal of the cheque, found that the ink used in the body of the cheque was different from the ink used in the signature on the cheque, therefore, he drew an inference that the case put forth by the respondent was doubtful, hence, could not be accepted. Even in this regard the High Court has failed to apply its mind. Having considered the findings delivered by the trial Court in regard to the above 3 points, we are of the opinion that the trial Court was justified in coming to the said conclusion because of the above three deficiencies pointed out by the trial Court, and that the respondents complaint ought to fall. In such a situation, we are of the opinion that the High Court fell in error in reappreciating the case of the respondent on a totally different perspective without coming to the conclusion that the findings given by the trial Court on the above three points are either irrelevant or contrary to material on record. Therefore, following the view laid down by this Court in the above said cases of Bhim Singh Rup Singh (supra) and Dharamdeo Singh (supra), we are of the opinion that the High Court was in error in reversing the findings of acquittal recorded by the trial Court.

The facts of the instant case are almost similar to the one in the above case. Therefore, it cannot be said that the trial Court was wrong in rejecting the plea of the complainant and acquitting the accused. The initial burden does not mean that it is a burden on the part of the complainant to prove that there was a legally enforceable debt or liability by leading evidence. The mere basic facts of the case should inspire the invocation of the legal presumption under Section 139 of the Act. In the absence of such factual basis, the lower Court cannot be said to have erred in holding that the initial burden was not discharged by the complainant, which is absent in this case, as seen above."

It has been contended by the Learned Advocate for the petitioner that the fact of theft of the cheque in question was brought to the notice of his banker and as such refusal on the part of the bank to honour the cheque on the ground that the cheque was reported lost by the drawer would not bring the matter within the mischief of provisions of Section 138 of the Act. In the present case the cheque in question was returned to the complainant with the remarks payment stopped by the drawer. The decision relied on by the Learned counsel for the petitioner has no manner of application to the facts and circumstance of the present case. In support of his contention he cited the decision in Raj Kumar Khurana Vs. State of (NCT of Delhi) and Anr., reported in Law finder Doc Id #192011.

The Learned counsel has further assailed impugned judgment on the ground that in the instant case the complainant has miserably failed to prove the existence of legally enforceable debt and liability and failure of the complainant to prove that he had given the money to the accused petitioner either in advance or in discharge of an existence liability. In support of his contention he has placed on reliance on Krishna Janardhan Bhat Vs. Dattatraya G. Hegde reported in Law Finder Doc ID # 137611;

The Learned Counsel for the petitioner also has contended that the presumption under Section 139 of the Negotiable Instrument Act in favour of the holder of cheque does not raise a presumption that the debt was legally recoverable. He has placed his reliance in M/s Kumar Exports Vs. M/s Sharma Carpets reported in Law finder Doc ID # 177932.

Learned Counsel for the petitioner has submitted that the complainant failed to produce any books of accounts to show that he had paid the amount to the accused /petitioner.

On the other hand Learned Counsel appearing for the opposite party no.2/complainant has drawn the attention of the Court to Section 139 and 118

(a) of the NI Act and submitted that there are special rules of evidence applicable to the cases under NI Act and in view of the above provisions the presumption as to Negotiable Instruments until the contrary is proved. The complaint under Section 138 of the Act, the court has to presume the cheque had been issued for a debt or liability. However, the burden proving that a cheque had not been issued for a debt or liability is on the accused.

In support of his contention the Learned Counsel has placed his reliance on the decision reported in Rangappa Vs. Sri Mohan, (2010)11 SCC 441.

In the present case the defence was taken by the petitioner that the cheque in question bearing his signature was stolen from his custody. He has failed to prove the theft of cheque in question bearing his signature by adducing cogent and convincing evidence. Admission of the signature of the complainant on the cheque raises statutory presumption of issuance of cheque under Section 139 of the Act. The accused/petitioner took his defence that the cheque in question was lost or theft from his custody but that fact has not been proved as it appears from the concurrent findings of both the Learned Courts below.

In this connection it has been argued on behalf of the petitioner that the cheque in question only bear the signature of the petitioner and the other written portion of the cheque do not bear the handwritings of the petitioner. In this connection it would not be out of place to mention Section 20 of the Act.

Section 20 of the act reads as under:-

"20. Inchoate stamped instruments.- Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India] and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount:

Provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder."

In the instant case, the materials placed on record show that both the learned Courts below came to the concurrent findings that the cheque in question that it Exhibit No. -1 was issued by the petitioner in discharge of his liability and the petition has failed to prove that the signed cheque was stolen away from his custody by the opposite party/complainant by adducing cogent evidence.

It is a settled principle of law that in exercise of its power under Section 482 of the Code of Criminal Procedure, the High Court should not, in the absence of perversity, upset concurrent factual findings of Trial Court and Appellate Court. Moreover, the High Court in exercise of its inherent power should not reanalyze and re-assess the materials particularly the evidence on record.

On perusal of the entire materials on record, it cannot be held that the Learned Courts below committed an error in holding that the petitioner committed an offence under Section 138 of the Negotiable Instruments Act.

In view of the above discussions, I have no hesitation to say that it is not a fit case to exercise the inherent power of the High Court.

The present application is devoid of merit.

Accordingly, the application being C.R.R.1378 of 2015 stands dismissed.

Let a copy of this judgment along with the LCR be sent down immediately.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, upon compliance with all necessary formalities.