Calcutta High Court (Appellete Side)
Ranada Dutta vs The State Of West Bengal & Anr on 7 December, 2009
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Mr. Tapas Kumar Giri
C.R.A. No. 783 of 2006
Ranada Dutta
Versus
The State of West Bengal & Anr.
For the Appellant: Mr. Biplab Mitra
For the State: Ms. Pronoti Goswami.
Heard on: 17/11/2009.
Judgment on: 07/12/2009.
TAPAS KUMAR GIRI, J.:-
This appeal is filed by the petitioner/complainant challenging the
judgment and order of acquittal passed on 26-09-2006 by learned Judicial
Magistrate, 1st Court, Jalpaiguri in C.R. No.216 of 2005 (TR No.2978 of 2005) in
a proceeding under Section 138 of the Negotiable Instrument Act.
The fact of the present case is that the complainant gave a loan of
Rs.30,000/- to the opposite party No.2 against a written document. On several
requests/demands for payment of the loan amount the opposite party
No.2/accused failed to pay the said loan amount and on 04-04-2005 the O.P.
No.2 issued a cheque bearing No.896239 amounting or Rs.30,000/- in favour of
the complainant drawn on State Bank of India, Jalpaiguri Branch. The
complainant presented the said cheque for encashment to his Banker i.e. U.C.O.
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Bank of India, Jalpaiguri Branch on 03-05-2005. But the same was returned
with a reminder of insufficient fund. Thereafter, the complainant gave a notice to
the accused through the lawyer on 14-05-2005 by a registered post with A/D
demanding the pay to entire cheque amount within 15 days from the date of
receipt of the said notice. The accused received the said demand notice on 18-
05-2005 but failed to pay the entire cheqhe amount within statutory period of 15
days. Thereafter, the complainant was compelled to file the present case i.e. C.R.
216 of 2005 under Section 138 of N.I. Act against the accused and the learned
Magistrate after taking cognizance of the offence issued the summons against the
accused who was released on bail and stood for trial.
The accused was examined under Section 251 of the Cr.P.C. and pleaded
not guilty and claimed to be trial.
During the trial the complainant produced three witnesses including
himself i.e. Ranada Dutta (P.W.1), Khagendranath Biswas (P.W.2) and Pranab
Sen Roy (P.W.3). In course of trial some documents were marked as Exhibit i.e.
postal receipt (Exbt. 1), A/D card (Exbt. 2), deposit slit of U.C.O. Bank (Exbt. 3),
memo of objection of U.C.O. Bank (Exbt.4) and cheque bearing No. 896239 (Exbt.
5). The learned Judicial Magistrate after scrutinizing the evidence of the
prosecution and after considering the statement of learned Advocates of both
sides acquitted the accused/O.P. No.2 from the offence under Section 138 of the
N.I. Act.
Being aggrieved and dissatisfied against the said judgment and order of
acquittal the petitioner/complainant has preferred the present appeal.
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Mr. Mitra, learned Advocate, appearing on behalf of the petitioner, pointed
out that the learned Magistrate failed to consider the presumption as laid down
in Section 139 of the N.I. Act. Mr. Mitra also pointed out that the learned
Magistrate failed to consider the relevant provision of Section 94 of the N.I. Act
when it was complied by the petitioner.
Mr. Mitra also pointed out that the learned Magistrate failed to consider
the relevant provision of Section 58 of the Evidence Act when the service of the
notice was admitted by the O.P. No.2. Mr. Mitra also pointed out that the
learned Magistrate failed to consider the relevant provision of Section 114(f) of
the Evidence Act.
Mr. Mitra pointed out that when there was the admission for the notice by
the accused at the time of examination of the accused under Section 313 of the
Cr.P.C. then there was no scope to disbelieve the same. In view of the above facts
the judgment and order of acquittal passed by the learned Judicial Magistrate, is
liable to be set aside and necessary order should be passed by this Court.
Ms. Goswami, learned Advocate, appearing on behalf of the State O.P.
No.1, pointed out that there is no ambiguity in the judgment and order of
acquittal of learned Judicial Magistrate and as such the present appeal is liable
to dismissed.
Ms. Goswami also pointed out that the learned Judicial Magistrate
discussed the relevant provision of Section 4 of the Evidence Act on
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"presumption" by the learned Court and the order of acquittal cannot be altered
by this appeal. The present appeal is liable to be dismissed.
No one appears on behalf of the O.P. No.2. It appears from the record that
the notice was duly been served upon O.P. No.2.
Heard both sides learned Judicial Magistrate, 1st Court, Jalpaiguri, framed
several points for consideration as follows:
1.Did the accused person issue the cheque-in-question?
2. Did the accused person issue the same to discharge his liability towards the complainant?
3. Did the complainant present the cheque to his Banker within validity period?
4. Did the cheque return unpaid due to insufficient fund of the accused person?
5. Whether any notice in terms of Clause (b) of proviso to Section 138 of N.I. Act was given to the accused person before filing of this case?
6. Did the accused person ail to make payment of the entire amount within the statutory period of 15 days from the date of receipt of demand notice?
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7. Whether the accused person is liable to be held guilty of the offence under Section 138 of the N.I. Act? And if so, what would be the quantum of punishment?
In the relevant judgment of learned Judicial Magistrate, the points Nos. 1, 2, 3 and 4 were decided in favour of the complainant/petitioner. But point Nos. 5 and 6 including the point No.7 were decided against the complainant and as such the accused was acquitted from the allegation under Section 138 of the N.I. Act.
Section 138 (b) of the N.I. Act states "The payee or the holder, in due course of the cheque as the case may be, makes a demand for payment of the said amount of money by making a notice in writing to the drawer of the cheque within 30 days from the receipt of the information by him from the bank regarding the return of cheque as unpaid."
Now, the question arose whether the said Act can be enforced by the said return of the cheque as insufficient i.e. dishonour of the cheque in question. It is admitted that the lawyer's notice to the accused by registered post with A/D demanding the payment of the cheque amount of Rs.30,000/- and the said notice was received by the accused on 18-05-2005 by the postal receipts and A/D card respectively. Though the question has come whether the contents of the notice marked as "X 2" for identification was duly been proved at the time of 6 trial from the complainant or not? From the evidence of P.W.1 it is clear that the complainant did not take any step to prove the same at the time of trial. Even the complainant did not take any step to prove the same by way of evidence before closing the evidence.
Section 17 of the Evidence Act states "An admission is a statement (oral or documentary or contained in electronic form) which suggests any interference as to any fact in issue or relevant fact and which is made by any of the persons and under the circumstances hereafter stated." But In examination of the accused under Section 313 of the Cr.P.C. the O.P. No.2/accused gave the answer on the question that he received a notice. But the contents of the notice as marked "X/2" for identification was not questioned to the accused at the time of examination under Section 313 Cr.P.C. and it was the vital question to consider the present allegation and in that respect the petitioner/complainant failed to prove the same by way of evidence either orally or documentary. There is no scope to consider the document which was marked as "X/2" for identification. Under Clause b of Section 138 of the N.I. Act the service of notice of demand is a condition precedent for filing a complaint under Section 138 of the N.I. Act. In the present case the notice was not proved properly according to law. Learned Judicial Magistrate rightly observed that the complainant failed to prove the demand notice that was the basic requirement for filing this case against the accused/O.P. No.2. I do not find any illegality or irregularity in the said 7 judgment passed by the learned Judicial Magistrate. The present appeal fails and it is dismissed. There is no order as to cost.
Let the L.C.R. along with the copy of the order be sent to the learned Court below at an early date.
Urgent xerox certified copy be supplied to the party, if applied for.
(TAPAS KUMAR GIRI, J.)