Gauhati High Court
Naren Gogoi vs Prem Upadhayay on 9 September, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010146732019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./730/2019
NAREN GOGOI
S/O- LATE GUNARAM GOGOI, R/O- GELLAPUKHURI, P.S AND DIST-
TINSUKIA, ASSAM
VERSUS
PREM UPADHAYAY
S/O- SRI RAJ KUMAR UPADHYAY, R/O- KAMAKHYA NAGAR, NEAR FCI,
P.O, P.S AND DIST- TINSUKIA, ASSAM, PIN- 786125
Advocate for the Petitioner : MR. S ISLAM
Advocate for the Respondent : MR. S S S RAHMAN
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 09-09-2022 09.09.2022 Heard Mr. S. Islam, learned counsel for the petitioner and Mr. S. Nawaz, learned counsel for the respondent.
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2. By filing this application under section 482 Cr.P.C., the petitioner, who has been convicted in a proceeding initiated under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") which was affirmed by the learned lower appellate Court has assailed the judgment and order dated 16.05.2019, passed by the learned Sessions Judge, Tinsukia in Crl. Appeal No. 5(1)/2018, thereby affirming the judgment dated 20.01.2018, passed by the learned Addl. Chief Judicial Magistrate, Tinsukia in N.I. Case No. 34/2012 and sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.10,00,000/- (Rupees ten lakh only) under section 357 Cr.P.C.
3. The parties herein are referred to as per their array in this criminal petition to avoid any confusion. The respondent is the complainant before the learned trial Court and the petitioner is the accused in the complaint case.
4. In brief, the case of the respondent in the complaint was that on the request of the petitioner, the respondent had given a sum of Rs.7.00 lakh in cash by way of agreement dated 29.03.2011, on promise to repay the amount by 15th May, 2011. As a part payment, the petitioner gave a cheque bearing no. 098868 dated 16.05.2011 drawn on Indusind Bank for a sum of Rs.1.00 lakh, which was dishonoured, in respect of which a complaint case was then instituted and was then being tried in the Court of Addl. Chief Judicial Magistrate, Tinsukia ("Addl. CJM, Tinsukia" for short). On 17.07.2012, it was agreed that the previous complaint would be withdrawn on payment of the previous cheque amount as well as the balance payable amount of Rs.6.00 lakh. Thereafter, for payment of debt, the petitioner had handed over six cheques of Page No.# 3/13 Rs.1.00 lakh each, bearing nos. 098866, 098867, 098869, 098870, 098871, and 098872, all drawn on Indusind Bank. All the said 6 (six) cheques were deposited for collection on 17.07.2012, but as per return memo dated 18.07.2012, all the six cheques were dishonoured as account was closed by the petitioner. Demand notice dated 30.07.2012, was sent by registered post to the petitioner through advocate, which was served as per the returned acknowledgement card. But as payment was not made, the complaint case was filed.
5. On contest being made by the petitioner, the respondent had submitted his evidence-on-affidavit, and proved 16 exhibits, viz., agreement dated 29.03.2011 with signatures [Ext. nos. 1 to 1(iv)]; cheques and signatures of petitioner [Ext. nos. 2, 2(i), 4, 4(i), 6, 6(i), 8, 8(i), 10, 10(i), and 12, 12(i)]; cheque dishonour memos (Ext. nos. 3, 5, 7, 9, 11 and 13); advocate's demand notice, signature, registration slip and acknowledgement card [Ext. nos. 14, 14(i), 15 and 16]. The respondent- complainant had examined 3 witnesses including himself, who were all cross-examined and discharged. Thereafter, on 18.11.2016, the petitioner was examined under section 313 Cr.P.C. The petitioner had then examined himself as DW-1 and he was also cross examined and discharged. The petitioner had exhibited FIR dated 02.06.2011 (Ext.A), and letter dated 03.06.2011 to bank (Ext.B).
6. The learned trial Court, i.e. the Court of Addl. C.J.M., Tinsukia after discussing the statement in the complaint, and on examining the evidence on record, formulated the following point of determination - " whether the accused Sri Naren Gogoi issued cheque nos. 098866, 098867, 098869, 098870, 098871, and 098872 for Rs.1,00,000/- each against the remaining liability of Rs.6,00,000/- against the agreement dated 29.03.2011 to the complainant in Page No.# 4/13 discharge of his legally enforceable debt and the same were dishonoured by the banker of the accused person on being presented for encashment due to account closed of the accused person and that the accused failed to pay the cheque amount when demanded through legal notice and thereby committed and offence punishable u/s. 138 of the Negotiable Instruments Act?"
7. On examination of the evidence on record, the learned trial Court had relied on the evidence on PW nos. 2 and 3 to the effect that the agreement was entered into by the parties in their presence and they had put their signatures as witnesses in the agreement. The learned Court held that the lack of signature of the parties in the first page of the agreement was not material because the signatures of the parties were put at the specific space in the second page, which leaves no space for doubt that the signatures were put after the contents were written on the page and not prior to that. The existence of the agreement was also accepted because the petitioner was convicted for dishonour of cheque no. 098868 for Rs.1.00 lakh by the said Court by judgment and order dated 18.11.2013, which was affirmed by the learned Addl. Sessions Judge, Tinsukia by judgment dated 12.10.2015 in Crl. Appeal No. 64(4)/2013. Hence, the learned trial Court had drawn presumption under section 139 of the NI Act, and as presumption could not be rebutted by the petitioner as DW-1. The learned trial Court had held that the plea of the petitioner that he was given cheque no. 098868 to Arvind Kumar (PW-2), as the same was denied by PW-2. The learned trial Court held that the six dishonoured cheques were issued in discharge of the lawful debt as the evidence of the PWs could not be shaken on the point and the plea that the said ten cheques bearing serial nos. 098866 to 098875 were lost for which FIR was lodged on 02.06.2011, was held to be unacceptable because of three reasons, firstly, that out of these ten cheques, Page No.# 5/13 the petitioner as DW-1 had accepted issuance of cheque no. 098868 to PW-2, secondly, the genuineness of the contents of the FIR dated 02.06.2011 (Ext.A) was doubted because out of the lost cheques, one was issued to PW-2, and thirdly, the said Ext.A was not proved by the Officer-in- Charge. Moreover, the genuineness of the letter dated 03.06.2011 (Ext.B) to the bank was also doubted for two reasons, firstly, because the same was received on 02.06.2011, and secondly, the said Ext.B was not proved by the Branch Manager of Indusind Bank. Accordingly, it was held that the respondent could successfully prove that the said six cheques were issued in discharge of legally enforceable debt and the petitioner had failed to rebut the same. The dishonour of the six cheques on closure of the account was held to be covered by dishonour of cheque for insufficiency of funds because no payment was made despite receipt of notice for dishonour of cheque and it was held that all the ingredients of section 138 of the NI Act was proved by the respondent and therefore, it was held that the petitioner had committed the offence of dishonour of cheque, punishable under section 138 of the NI Act. The learned trial Court refused to give the petitioner the benefit of section 360 Cr.P.C. or under Probation of Offenders Act, 1958 and accordingly, the petitioner was convicted and was sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.10,00,000/- (Rupees ten lakh only) under section 357 Cr.P.C.
8. The petitioner, who was aggrieved by the judgment and order convicting him and sentencing him as indicated herein before, had preferred an appeal. The said appeal was registered and numbered as Crl. Appeal No. 5(1)/2018, which was heard by the learned Sessions Judge, Tinsukia. The following point of determination was framed by the learned appellate Court, viz., Page No.# 6/13 whether the trial Court judgment suffers from any infirmity or illegality?
9. It may be stated that the learned lower appellate Court had recorded that as the petitioner had agreed that the evidence available in the case has proved the offence against him, the entire evidence would not be discussed as the only defence taken in the case was that the case was not within the purview of section 138 of the NI Act. It was recorded that the learned counsel for the petitioner had referred to the provisions of section 138 of the NI Act and had submitted that a case under section 138 of NI Act would stand when the cheque is dishonoured due to insufficiency of funds or when cheque amount exceeds arrangement and that both the said conditions were not satisfied. In this regard, the learned lower appellate Court had held that section 138 of the NI Act stands on the presumption against the drawer of the cheque and in this case, the petitioner had already closed the account and from that account he had issued six cheques to the respondent and therefore, it can be presumed that the petitioner had dishonest intention and therefore, it was held that there was no merit in the appeal and it was further held that the learned trial Court had rightly passed the judgment and thus, the appeal was dismissed.
10. The learned counsel for the petitioner had submitted that the six cheques was lost and in the said regard, the petitioner had not only lodged and proved the FIR, but also lodged and proved his letter to the bank regarding loss of cheque by enclosing the FIR. It was also submitted that the evidence of the petitioner as DW-1 was mechanically discarded by the learned trial Court and that the learned lower appellate Court had not dealt with any evidence on record. In support of his submissions, the learned counsel for the petitioner had meticulously referred to the evidence of the three PWs and evidence of the Page No.# 7/13 petitioner as DW-1. In support of his submissions, the learned counsel for the respondent had referred to the following case citations, viz., (i) Laxmi Dyechem v. State of Gujarat & Ors., (2012) 13 SCC 375 , (ii) Rangappa v. Mohan, (2010) 11 SCC 441, (iii) M.S. Narayana Menon v. State of Kerala & Ors., (2006) 6 SCC 39, and (iv) Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 .
11. The learned counsel for the respondent has made his submissions to support the concurrent judgment of both the Courts below.
12. Carefully perused the evidence on record.
13. At the outset, it must be mentioned that this criminal petition has been filed under section 482 Cr.P.C. and this is not a revision under section 397 read with section 401 of the Cr.P.C. Therefore, the power of the Court to examine the concurrent finding is limited to see as to (i) whether the ends of justice required interference with the judgment passed by both the learned Courts below, and (ii) whether there was any abuse of the process of Court. However, when revision is filed under section 397 read with section 401 of the Cr.P.C., the Court has the power to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed by the Court.
14. In the present case in hand, the petitioner has urged 12 ground nos. (a) to (l) to assail both the impugned orders. The gist of the said twelve grounds are as follows, viz., (a) the Courts below had erred in law; (b) the Courts below had committed gross illegality and the judgment are contrary to the mandatory provisions of law; (c) the Courts below have failed to consider and appreciate the evidence and exhibits in true perspective; (d) the Courts had failed to consider the FIR and intimation to the bank about the loss of cheques;
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(e) the Courts had failed to consider discrepancies in the deposition of witnesses and documentary evidence to the effect that the first page of agreement did not contain signature and the petitioner had given his signature on a blank paper; (f) the respondent- complainant had failed to prove that the petitioner had a liability towards him; (g) the Courts had failed to consider that the cheques were not account payee cheques; (h) no documents were exhibited by the respondent-complainant; (i) the judgments were vitiated by non- consideration of the provisions of section 360 Cr.P.C. and Probation of Offenders Act, 1958; (j) the Courts had failed to appreciate that the petitioner had successfully rebutted the presumption; (k) the Court had failed to examine the bank officials and the Officer-in-Charge of Tinsukia Police Station; and (l) the petitioner craves leave to argue on any other good grounds at the time of hearing.
15. Although it has been mentioned herein before, it is reiterated at the cost of repetition that the learned appellate Court below had not discussed the entire evidence because the petitioner had agreed that the evidence available in the case has proved the offence against him. Moreover, the learned appellate Court had further recorded in the order that the only defence taken was that the case was not within the purview of section 138 of the NI Act. Thus, it is seen that in none of the twelve grounds referred to above, the petitioner has disputed the admission made before the appellate Court that the evidence available in the case has proved the offence against him.
16. Despite the admission made before the learned appellate Court below, the evidence available on record has been appreciate to see if the learned Courts below had erred in law, or relied on any material which was not Page No.# 9/13 proved in evidence, or whether the judgment was vitiated by any abuse of the process of law.
17. The ground nos. (a) to (c) are too general and vague and the learned counsel for the petitioner has not been able to substantiate the same.
18. As regards the ground no.(d) and (k) is concerned, they are connected and therefore, taken up together. Although the petitioner had exhibited Ext.A and Ext.B, but the said two exhibited documents are copies, because (i) the original FIR (Ext.A) had purportedly been filed before the police station, and (ii) the original copy of the intimation of loss of cheques (Ext.B) was submitted to the bank. The petitioner had receipted copies thereof, which is secondary evidence. The petitioner had not exhibited the certified copy of the FIR. Therefore, in the absence of having Ext.A proved through the police personnel from Tinsukia P.S. and in the absence of having Ext.B proved through the Manager of the Bank by calling the original record, the trial Court has neither erred, nor committed any illegality in discarding the Ext.A and Ext.B. The contents of FIR (Ext.A) and intimation to bank (Ext.B) was rightly discarded by the learned trial Court because out of these ten cheques allegedly lost, the petitioner as DW-1, in his evidence, had accepted that he had issued cheque no. 098868 to PW-2. There is no explanation how did the petitioner get access to one out of ten lost cheques which according to the petitioner was issued to the PW-2. The reasons why the learned trial Court had discarded Ext.A and Ext.B has already been narrated herein before and therefore, it has not been repeated herein. The learned trial Court had rightly doubted the letter dated 03.06.2011 to the bank as it was received by the bank official on 02.06.2011, which makes it not reliable in the absence of any explanation by the DW-1 in his evidence.
Page No.# 10/13 The learned counsel for the petitioner has neither been able to show any provision of law nor any case citation was shown to demonstrate that while trying a complaint case, the trial Court has the power to suo motu issue summons to (i) the Officer-in-Charge of Police station to come with the record and to depose and to prove the FIR lodged by the petitioner, and (ii) to the Bank Manager to come with the record and to depose and to prove the intimation by the petitioner about loss of cheques, when the petitioner had exhibited copies without obtaining any prior leave to exhibit secondary evidence and when no prayer was made by the petitioner to allow him to take steps for production of the records and to prove the same in accordance with law. Therefore, there is no merit in the said contention.
19. The ground nos. (e), (f) and (j) are taken up together. In connection with ground (e), the observations and finding of the learned trial Court has been narrated herein before, whereby it is seen that the learned trial Court had given its finding why the agreement (Ext.1) was admissible despite the fact that the first page did not contain any signature. On an examination of the said Ext.1, the original of which was produced by the learned counsel for the respondent, it is seen that notwithstanding that the first page of the agreement does not contain any signature, yet the signature of the parties appear in the space earmarked for signature on the second page. In this regard, the evidence of the PWs could not be shaken during cross examination. Therefore, the Court finds no infirmity in acceptance of Ext.1 in evidence. Moreover, in course of appeal hearing, the learned counsel for the petitioner had admitted that the evidence available in the case has proved the offence against the petitioner. Thus, by proving Ext.1, the respondent had been able to prove that the petitioner had a liability towards him. Therefore, when the respondent Page No.# 11/13 had successfully proved the existence of liability of the petitioner to repay the dues to the respondent, it cannot be said that the Courts below had failed to appreciate that the petitioner had successfully rebutted the presumption. When the stand taken vide Ext.A and Ext. B was not proved, it cannot be held that the petitioner was successful in rebutting the presumption as provided under section 139 of the NI Act. Thus, there is no error of illegality in the finding by the learned trial Court.
20. The ground no. (g) also has no merit because the proceeding under section 138 of the NI Act cannot be said to be not maintainable merely because the cheques were not account payee cheques.
21. The ground no. (h) is also devoid of any merit because as indicated herein before, and also mentioned in the judgment of the learned trial Court, the petitioner had exhibited as many as 14 documentary exhibits and the petitioner had not got his objection noted when the documentary exhibits were admitted in trial and considered at the time of hearing. The admissibility of any of the exhibits has not been questioned by the petitioner.
22. The ground no. (i) is equally devoid of any merit because it has been mentioned herein before that the learned trial Court had duly considered the provisions of section 360 Cr.P.C. as well as the provisions of the Probation of Offenders Act, 1958.
23. The petitioner had issued six cheques to the respondent from an account which was closed. In the said context, it is no longer res integra that if the cheque is dishonoured as account is closed after issuing the cheques, the offence punishable under section 138 of the NI Act has been made out. If one Page No.# 12/13 needs any authority on the point, the case of Laxmi Dyechem (supra), may be referred to.
24. As on facts, the petitioner has not been able to make out a case, this order need not be burdened with discussion on the cases cited by the learned counsel for the petitioner.
25. Therefore, on all counts, the challenge to the judgment and order dated 16.05.2019, passed by the learned Sessions Judge, Tinsukia in Crl. Appeal No. 5(1)/2018, and (ii) the judgment dated 20.01.2018, passed by the learned Addl. Chief Judicial Magistrate, Tinsukia in N.I. Case No. 34/2012 fails and this petition stands dismissed. It may be mentioned that in this case, the petitioner has not been able to demonstrate that the impugned orders suffer from any legal or factual error, or there was an abuse of the process of the Court, or that the petitioner was convicted by relying on any inadmissible evidence. Therefore, this case does not meet any of the parameters under which a concurrent finding by both the Courts below can be interfered with. Nonetheless, the merit of the case has also been examined in the process, which was to be otherwise examined only if the petitioner had filed a revision under section 397 read with section 401 of the I.P.C.
26. Resultantly, the sentence against the petitioner to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.10,00,000/- (Rupees ten lakh only) under section 357 Cr.P.C. needs no interference because the petitioner has been able to dodge paying his lawful debt for more than 11 years.
27. Let both the LCRs, received from the learned trial Court as well Page No.# 13/13 as the learned lower appellate Court be returned.
28. This criminal petition stands dismissed.
JUDGE Comparing Assistant