Kartick Chandra Mandal vs State of West Bengal and Others

Joymalya Bagchi, J.�The appeal is directed against the judgment and order of acquittal dated 31.08.2009 passed by the learned Judicial Magistrate 5th Court Chinsurah, Hooghly, in case No. CR-281/107 of 2007 under section 138 of the Negotiable Instruments Act, 1881. The prosecution case as alleged against the respondent is to the effect that the appellant is the maternal uncle of respondent No. 2. Respondent No. 2 is a civil contractor by profession. The appellant had extended friendly loans on various occasions to respondent No. 2 on the basis of faith and trust. The respondent No. 2 in partial discharge of such liability handed over a cheque bearing No. 075707 dated 02.07.2007 drawn on Union Bank of India for Rs. 4,00,000/- to the appellant. The cheque on presentation was returned unpaid with the endorsement "refer to the drawer". On 31.07.2007, the appellant issued demand notice under registered post with acknowledgment due card upon the respondent calling upon the latter to make payment the value of the dishonored cheque. The notice was received by the respondent on 02.08.2007. In spite thereof the amount was not paid. Hence, the petition of complaint was filed.

The substance of accusation was read over and explained to the respondent, who pleaded ''not guilty'' and claimed to be tried.

The appellant examined himself as PW 1. The respondent examined himself as DW 1.

The defence of the appellant was one of innocence and false implication. It was his specific defence that no loan was advanced. There is no legally enforceable debt or liability in respect of which the cheque had been issued. The Trial Court after an analysis of the evidence on record, by the impugned judgment and order acquitted the respondent No. 2 of the accusation levelled against him.

Mr. Bhattacharyya, learned counsel appearing for the appellant submitted that the trial court failed to take into consideration the evidence of the appellant that the loan had been advanced to respondent No. 2, his nephew, out of love and affection. Respondent No. 2 promised to repay the loan. He further drew my attention to the evidence of PW 1 expressly spelling out the manner in which the loan had been advanced on various dates to respondent No. 2. The trial court failed to consider the relationship by and between the parties and erroneously disbelieved loan transactions as receipts for such loan advanced had not been proved. He argued that respondent No. 2 had not explained as to how dishonoured cheque came into the possession of respondent No. 2. He accordingly prayed for setting aside the order of acquittal and prayed that the respondent No. 2 be convicted and adequate sentence be passed against him.

Mr. Sanyal, learned counsel appearing for the respondent No. 2 submitted that statutory presumption under section 139 of the Negotiable Instrument Act was rebutted as the appellant failed to explain the source of funds from which he advanced the loan. He claimed that the appellant had deposed that he had taken loan from his employer but the same had not been proved. The appellant could not show any document in support of his claim that loan was advanced to his client. He relied on John K. Abraham Vs. Simon C. Abraham and Another, in support of his contentions. He prayed for dismissal of the appeal.

PW 1 deposed that he was an employee in the West Bengal Fisheries Department and had retired in December, 2004. In cross-examination he had stated the manner in which the loan was advanced to respondent No. 2, as follows:

He further stated that on 08.12.2005 another sum of Rs. 75,000/- was advanced by way of loan. He admitted he could not say in whose handwriting dishonoured cheque was written. He stated accused had not signed in his presence. He admitted that he had no document in support of such loan. He explained due to past incidents he believed respondent No. 2. Respondent No. 2 was his ''Bhagne'' (nephew) and he believed him. He stated that he could show valid documents regarding having an amount of Rs. 4 lacs.

D.W. 1 in his evidence admitted the relationship by and between the parties. He also stated that there was no business relationship between the parties.

Analyses of the aforesaid evidence show that the parties are related to each other as maternal uncle and nephew. This relationship explains why formal receipts had not been obtained in the matter of advancing of loans to respondent No. 2.1 find from the evidence of PW 1 as to the dates and manner in which the monies, had been advanced to respondent No. 2. It is not the case of respondent No. 2 that appellant was a man without any means whatsoever. He was a Government employee who was working in Fisheries Department till December, 2014. Therefore there is every possibility that he has reasonable liquidity to advance the loan in 2005. He had stated that he took loan from his employee. Trial Court disbelieved him as he had already superannuated when he advanced the money to respondent No. 2. Trial Court failed to appreciate that appellant was in employment till December, 2004 while loan was advanced on various dates in 2005. It is absurd to conclude that the appellant did not have adequate liquidity in 2005 to advance the loan as he had only recently superannuated in December, 2004. It is the case of respondent No. 2 that there was no business transaction between the parties. It is therefore strange as to how'' a signed cheque of respondent No. 2 came into the possession of the appellant. The respondent is completely silent as to how a cheque duly signed by him came into the possession of the appellant except for the purpose as indicated by PW 1 in his deposition.

Reliance has been placed in the case of John K. Abraham (Supra). In the said case acquittal of the accused was upheld on the ground that the complainant was not aware of the date on which the loan had been advanced or who wrote the cheque or exactly when and where the transaction took place for which dishonoured cheque was issued. The factual matrix in the instant case is entirely different. In the instant case parties are related to each other. The appellant has categorically stated in his evidence the dates and the manner in which the loan was advanced to respondent No. 2. He has also stated that respondent No. 2 promised to repay the loan within a year. The appellant was in government service till December, 2004 and had taken a loan from his employer. Hence, he had advanced money to respondent No. 2 soon thereafter on various dates in 2005. There has no vagueness as to the manner and circumstances in which the Joan was advanced to respondent No. 2 or the source of funds of appellant in that regard. The learned Trial Court disbelieved such version on the ground that no receipt could be proved with regard to the loan transaction.

As discussed earlier, one cannot lose sight the fact that the parties are closely related to each other and therefore the appellant as maternal uncle of respondent No. 2 was not in a position to insist on receipts for the loan advanced to the latter. The learned Trial Court completely lost sight while of such fact and erroneously disbelieved the prosecution case. Evidence of PW 1 in the matter of advancing loan to respondent No. 2 and the cheque being issued in liquidation of such liability is clear, cogent and convincing. It remains unshaken in cross-examination. Hence, I am of the considered view that the learned Trial Court erred in law that there was no legally enforceable debt or liability for which the dishonored cheque had been issued. One vital circumstance was completely ignored by the learned Trial Court. There is no explanation whatsoever as to how the cheque in question came into the hands of the appellant. It is the specific defence of the respondent that there is no business transaction between the parties. Hence, it was incumbent on the part of the respondent to explain as to how the appellant was handed over the cheque. Failure to do so clearly gives rise to the statutory presumption that the same had been issued by respondent No. 2 in discharge of a legally debt or liability. Trial Court has erred in law in failing to attract such statutory presumption in the factual matrix of the case.

Accordingly, the impugned judgment and order of acquittal is set aside. The respondent is convicted for commission of offence punishable under section 138 of Negotiable Instruments Act.

Coming to the issue of sentence, I find that the parties are related to one another. It is submitted that respondent No. 2 does not have any previous criminal antecedent. The appellant however was a retired person and he had extended loans on various dates in 2005 to his nephew out of love and affection in liquidation whereof dishonoured cheque was issued. Opportunities to refund the sum of the dishonoured cheque even during the pendency of the appeal were spurned by respondent No. 2. Accordingly, I am of the view that respondent No. 2 is not entitled-to probation under the provisions of Probation of Offenders Act, 1958.

In view of the aforesaid discussion, I sentence the respondent to suffer simple imprisonment till rising of the court and to pay a fine of Rs. 6,00,000/- in default to suffer rigorous imprisonment two months more. The fine amount, if realized, shall be paid to the appellant as compensation.

The respondent No. 2 is directed to surrender before the trial Court within a month to serve the sentence and pay the fine, as directed, failing which the trial Court shall proceed to execute the sentence and realise the fine in accordance with law.

The appeal is allowed. Copy of the judgment and order be sent down along with the lower court record to the trial court at once.