Bimal Kumar Barui vs Nirmal Pandit

Joymalya Bagchi, J.—Judgment and order dated 1.8.2008 passed by the learned Judicial Magistrate, 1st Court, Sealdah, South 24-Paraganas acquitting the opposite party from the charge of committing offence punishable u/s 138 of the Negotiable Instrument Act has been assailed.

The case made out in the petition of complaint against the respondent is that the appellant had given an accommodation loan of Rs. 2 lakhs on undertaking that he shall pay the same within six months. The respondent had issued two cheques of Rs. 1,50,000/- and Rs. 50,000/- dated 20.9.2004 and 7.2.2005 respectively. The cheques on being presented for encashment were returned unpaid with the remark ''exceeds arrangement''. Demand notice was issued upon the respondent but the amount was not paid. Hence, the petition of complaint.

The defence of the respondent was one of innocence and false implication. Plea was recorded u/s 251 of the Code of Criminal Procedure. The respondent pleaded ''not guilty'' and claimed to be tried. It was the specific defence of the respondent that the cheques had been forcefully extorted from him and he had reported the matter promptly to the police. There was no legally enforceable debt or liability payable to the appellant in discharge whereof the cheques were issued.

In the course of trial, the appellant examined himself as P.W. 1 whereas the respondent examined himself as D.W. 1. A number of documents were exhibited on behalf of both the parties. In conclusion of trial, the learned Trial Judge by judgment and order dated 1.8.2008 acquitted the respondent of accusation of having committed the offence punishable u/s 138 of the Negotiable Instrument Act. Hence, the present appeal.

Nobody appears for the appellant.

Mr. Dasgupta, amicus curiae, submitted that the respondent had probabilised his defence by examining himself and exhibiting documents. Complaint was lodged with the Officer-in-charge of Durgapur Police Station alleging that the blank cheques had been forcefully taken away from the residence of the respondent and thereafter, the same were filled up and presented for encashment. Documents exhibited by the appellant to probabilise the loan advanced to the respondent do not inspire confidence. He further submitted that when two views are possible in the facts of the case one in favour of the accused, ought to be accepted and order of acquittal ought not to be disturbed.

Let me examine the evidence led in this case.

The appellant himself examined as P.W. 1. He stated that he advanced accommodation loan of Rs. 2 lakhs to the respondent, which was assured to be repaid within six months. He exhibited undertaking executed on a stamp paper where respondent undertook to repay the loan. He exhibited the dishonoured cheques, the demand notice and the postal acknowledgement card in respect of receipt thereof by the respondent.

In cross examination, he admitted that he had business relation with Gopal, brother-in-law of the respondent and a sum of Rs. 1,50,000/- was due from Gopal. He admitted that a meeting was held with regard to the liquidation of dues from Gopal wherein the respondent was present. He denied the suggestion that he went to the house of the respondent and forced him to put signature on the blank papers including stamp paper and also forcefully took away blank cheques signed by the respondent.

The respondent examined himself as D.W. 1. He stated that there was business relationship between the appellant and Gopal, his brother-in-law and the latter left his house on 22.8.2004 to avoid his liability. Thereafter, the appellant went to his house and forcefully made him signed on blank papers including stamp papers and forcefully took away the cheques which were subsequently presented and dishonoured. Accordingly, he issued notice directing stop payment of the cheques (Ext. A) and also lodged complaint with the police, being Ext. B.

The learned Trial Judge upon analysis of the evidence on record disbelieved the prosecution case that there was loan transaction between the appellant and the respondent and in view of the complaint lodged to the police with regard to the forcibly taking away of the blank cheques and signing on blank papers/stamp papers by the respondent at the behest of the appellant, acquitted the respondent of the accusation levelled against him.

I find from the evidence on record that the documents exhibited by the appellant with regard to the loan transaction do not inspire confidence. The stamp paper which has been exhibited was not purchased in the name of the respondent. That apart, the respondent had promptly made a complaint with the local police station that he had been forced to sign blank papers including stamp papers and forcibly blank cheques signed by the appellant were taken away. P.W. 1, in cross-examination, also had admitted that there was a due of Rs. 1.5 lakhs from the brother-in-law of the respondent and that there was a meeting arranged over the same.

The aforesaid circumstances probabilises the defence version that when the brother-in-law of the respondent had run away, the appellant came to the residence of the respondent and forcibly made the respondent sign blank papers including stamp papers and also had taken away the blank signed cheques from the respondent by use of force. Defence version is further corroborated by the complainant contemporaneously lodged with the police station by the respondent. It also appears that the cheques were filled up by different hand. It is, therefore, clear that the prosecution has not been able to prove beyond reasonable doubt that the cheques had been handed over voluntarily to the appellant in discharge of existing legally enforceable debt or liability. On the other hand, there is ample evidence on record that the dishonoured cheques were coerced out of the respondent, as his brother-in-law had run away without liquidating his liability.

It is trite law that when two views are possible on a set of evidence and the learned Trial Court has acquitted the accused on such evidence by interpreting it in a particular manner, which is reasonable, the appellate court will not substitute the same by the other view.

For the aforesaid reasons, I do not find any merit in the instant appeal.

The appeal accordingly stands dismissed.

I record my appreciation for the able assistance extended by Mr. Dasgupta, as amicus curiae to the Court in the instant case.

Copy of the judgment along with Lower Court Records be sent down to the Trial Court at once.