Calcutta High Court (Appellete Side)
Nani Gopal Dutta vs M/S. Asharam Rampratap & Anr on 14 December, 2011
Author: Kalidas Mukherjee
Bench: Kalidas Mukherjee
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Form J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Revision Jurisdiction
PRESENT:
THE HON'BLE MR JUSTICE KALIDAS MUKHERJEE
CRR NO. 466 OF 2011
Nani Gopal Dutta
Vs.
M/s. Asharam Rampratap & Anr.
For the Petitioner : Mr. Sanat Chowdhury
Mr. Tulshidas Ray
Mr. Himangshu Ghosh
Mr. Tapan Roy
For the O.P. No. I : Mr. Subhadip Biswas
Mr. Kanak Kiran Bandyopadhyay
HEARD ON : 17.11.11, 22.11.11 & 24.11.11
JUDGMENT ON : 14.12.2011
KALIDAS MUKHERJEE, J.:
1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure against the impugned Judgment and Order dated 10.12.2010 passed by the Learned Additional Sessions Judge, Fast Track Court No.II, Calcutta in Criminal Revision No. 153 of 2009 arising out of an order 2 dated 24.08.09 passed by 13th Metropolitan Magistrate Calcutta in C Case No. 559 of 2005 (TR 616/2005) under Section 138 of the Negotiable Instruments Act whereby the revisional application was dismissed.
2. The case of the complainant, in short, is that the complainant is the authorised person of M/s Asharam Rampratap, a partnership firm for filing this petition of complaint on behalf of the complainant firm. The accused is running a business on textile items under the name and style "M/S Anupam". The said accused had business transaction with the complainant firm and in the discharge of the debt or liability, the accused issued one A/C payee cheque No. 071778 dated 15.3.2005 for Rs. 1,48,636.00 on Bank of Baroda, Sodepur Branch, North 24-Parganas, in favour of the complainant firm. The Complainant presented the said cheque within the period of validity with the - Allahabad Bank, Kolkata for clearing. The said cheque was dishonoured on 12.04.05 and the intimation to that effect was received from the complainant's bank on 17.4.05. The complainant issued demand notice through their learned Advocate and sent it by registered post with A/D Card. Inspite of the receipt of the demand notice on 5.5.2005, the accused did not pay the cheque amount. For the said reasons the petition of complaint was filed.
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3. After hearing the parties and on perusal of the evidence on record the Learned Metropolitan Magistrate, 13th Court, Calcutta, convicted the accused and sentenced him to suffer S.I. for one month and also to pay a sum of Rs. 2,00,000/- ( Rupees two lakh only) as compensation to the complainant as per provision of Section 357 (3) of the Cr. P.C. The accused preferred a Criminal Revision bearing No. 153 of 2009 which was dismissed by the Learned Additional Sessions Judge, Fast Track Court No. II, Bichar Bhawan, Calcutta.
4. In this Revisional Application the learned counsel appearing for the petitioner submits that the business transaction with the complainant was stopped long ago and there was no existence of any debt or liability in connection with the said business transaction. It is contended that the complainant is neither an employee nor the payee or holder of the cheque in due course. The letter of authority (Exbt. I) ought not to have been relied on by the Learned Magistrate. It is contended that out of three partners only one partner signed the letter of authority. It is submitted that affidavit-in-chief was not duly stamped. It is contended that the complainant is not the authorized person to file the complaint on behalf of the partnership firm.
5. Learned Counsel for the petitioner has referred to and cited the decisions reported in 2007 CRI. L. J. 2207 [Maharaja 4 Developers v. Udaysingh Pratapsinghrao Bhonsle]; 2007 CRI. L. J. 1026 [Prasanta Kumar Basu vs. Narendra Kumar Anchalia & Anr.]; 2007 CRI. L.J. 858 [Mrs. Alka Toraskar v. The Vaishya Urban Co-op. Credit Society Ltd. & Anr.]; 2011 CRI. L.J. 3680 [M/S. Sakthi Finance Ltd. v. K. Selvaraj.]; AIR 2005 SC 439 [Janki Vashdeo Bhojwani and Anr. vs. Indusind Bank Ltd., and Ors.]; 2002 C. Cr. LR (SC) 249 [M/S. M.M.T.C. LTD. & Anr. v. M/S. Medchl Chemicals & Pharma(P) Ltd. and Anr.]; 2002 Cri. L. J. 4226 [S. P. Subhamaniam, v. Vasavi Cotton Traders and Anr.]; 2009 Cri.L. J. 2154 [Govind Ram Chanani v. Latha & Anr.]; AIR 2009 SC 1489 [Avinash Kumar Chauhan v. Vijay Krishna Mishra]; (2007)1 C. Cr. LR (SC) 364 [M.S. Narayana Menon @ Mani vs. State of Kerala & Anr.]; AIR 1976 Rajasthan 123 [ Mangal Singh, vs. The State of Rajasthan and Ors.].
6. Learned counsel appearing for the O.P. submits that the accused, admittedly, issued the cheque. On the point of letter of authority the learned counsel submits that the cheque was issued in favour of the partnership firm and PWI was authorized by one of the partners on behalf of the partnership firm to file the complaint. It is submitted that by virtue of Exbt. I, PWI was authorized to file this complaint and Exbt. I is a valid document and it cannot be challenged in this proceeding. Learned counsel submits that under section 139 of the N.I. Act there is the presumption 5 that the cheque has been issued towards liability or debt and this statutory presumption has not been rebutted by examining two DWs. It is submitted that there is no ground to interfere with the conviction and sentence recorded by the Learned Magistrate.
7. Learned counsel for the O.P. has referred to and cited decisions reported in 2002 C Cr. LR (SC) 249 [M/S. M.M.T.C. LTD. & Anr. v. M/S. Medchl Chemicals & Pharma(P) Ltd. and Anr.](supra); AIR 1967 Punjab 331 (V.54 C 81) [Bawa Gurdas Ram Bedi vs. Hans Raj Ram Parshad Khatri and Ors.];2002 CRI L.J. 4226[S.P.Subramaniam, vs. Vasavi Cotton Traders and Anr.]; AIR 2009 SC 422[M/s. Shankar Finance & Investments v. State of Andhra Pradesh & Ors].
8. In Paragraph 2 of the petition of complaint it has been stated that the accused had business transaction with the complainant firm. In the examination under section 313 of the Cr.P.C. the accused stated as against question No. 3 that he has business transaction with the complainant. As against question No. 4 the accused stated that he issued the cheque as security in the year 1997 and as against question No. 5 stated that he did not fill up the cheque and the writings were not made by him.
9. DWI, the son of the accused, has stated that the complainant firm used to supply goods to them and they had business 6 transaction with the complainant firm since 1995-96. It is true that presumption under Section 139 of the N. I. Act is rebuttable. Now it has to be seen whether the accused has been able to rebut the presumption arising out of section 139 of the N.I. Act.
10. In the case of M/s. Shankar Finance & Investments v. State of Andhra Pradesh & Ors (supra), it has been observed by Hon'ble Apex Court in paragraph 6 by referring to a decision reported in (1998)1 SCC 687 [Associated Cement Co. Ltd. v. Keshvanand [1998 (1) SCC 687] as follows;-
"6. ......... It has been held that there may be occasions when different persons can represent the company.
It has been held that it is open to the de jure complainant company to seek permission of the Court for sending any other person to represent the company in the Court. Thus, even presuming, that initially there was no authority, still the company can, at any stage, rectify that defect. At a subsequent stage the Company can send a person who is competent represent the company. The complaints could thus not have been quashed on this ground."
When the process was issued and the PW 1 was examined and no objection was raised it can be said that the permission in filing the complaint through the authorized person and to examine the PWI was granted by necessary implication.7
11. In the aforesaid decision in the case of M/s. Shankar Finance & Investments v. State of Andhra Pradesh & Ors (supra), it has been observed in paragraph 12 as follows ;-
"12...................In regard to business transactions of companies, partnerships or proprietary concerns many a time the authorized agent or Attorney holder may be the only person having personal knowledge of the particular transaction: and if the authorized agent or Attorney holder has signed the complaint, it will be absurd to say that he should not be examined under section 200 of the Code, and only the Secretary of the Company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the proprietor of a proprietary concern, but an employee of such concern (who is not an Attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined. Be that as it may. In this case we find no infirmity."
12. The learned counsel appearing for the petitioner has referred to the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr. (supra) on the point of preponderance of the probability so as to rebut the presumption arising out of Section 139 of the N.I. Act. Since the issuance of the cheque is admitted, it is not tenable that the accused only signed the cheque and the other columns of the cheque remained blank and it is also not acceptable that the cheque was issued as 8 security in the year 1997. Under Section 139 of the N.I. Act when the cheque is issued it will be presumed that it has been issued towards the legal liability or debt. I find that in view of the provision of Section 139 N.I. Act, and the cheque, admittedly, having been issued, the accused petitioner has failed to rebut the presumption. The learned Additional Sessions Judge rightly held that there was no ground to adduce additional evidence under Section 391 Cr.P.C.
13. As against the point that the affidavit-in-chief was not duly stamped, learned counsel for the petitioner has referred to the decision reported in the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra (supra). On this point the learned counsel for the O.P. has referred to the decision in the case of Bawa Gurdas Ram Bedi, vs. Hans Raj Ram Parshad Khatri and Ors. (supra) and others wherein it has been observed in Para 16 as follows :-
"16. The short answer to the respondents' attack against the lower Court's view is found in Section 36 of the Indian Stamp Act, according to which where instrument has been admitted in evidence,such admission cannot, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. That the 9 expression "any stage" covers the stage of appeal is indisputable ........"
14. In the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra (supra) it was unregistered sale deed and in view of the inadequate stamp duty it was held that it was not admissible in any event in terms of Section 35. It is the contention of the learned counsel appearing for the petitioner that the affidavit-in-chief was affirmed before the Notary public and instead of putting Notarial Stamp, the Court fee stamp was affixed on it and, as such, the said evidence in chief ought not to have been accepted by the learned court below. I find that the objection in this regard cannot be entertained as it has been taken for the first time in this court and also in view of the observations made in the case of Bawa Gurdas Ram Bedi, vs. Hans Raj Ram Parshad Khatri(supra).
15. The other decisions cited by the learned counsel appearing for the petitioner would not come in the aid of his contention under the circumstances of the case.
16. Having heard the learned counsel appearing for the parties and on personal of the evidence on record and the principles enunciated in the aforesaid decisions I find that the learned Magistrate was justified in recording the conviction and sentence against the accused petitioner and the learned 10 Additional Sessions Judge was justified in dismissing the revisional application.
17. In the result, the present application fails and the same stands dismissed.
18. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.
(Kalidas Mukherjee, J. )