Partha Roy vs Tapas Kumar Dutta

Madhumati Mitra, J

This is an application under Section 482 of the Code of Criminal Procedure 1973 filed by the petitioner challenging the impugned judgment and order dated 07.10.2015 passed by the Learned Additional Sessions Judge, 9th Court, Alipore in Criminal Appeal no.1 of 2015.

By the impugned judgment and order the Learned Judge confirmed the judgment and order dated 24th November, 2014 passed by the Learned Judicial Magistrate, 2nd Court, Alipore in Complaint Case No. C.6005/2002 under Section 138 of the Negotiable Instruments Act. Learned Magistrate had convicted the present petitioner and sentenced him to suffer simple imprisonment of 10 days and to pay compensation of Rs,55,000/- to the complainant in default to suffer simple imprisonment of three months.

Facts giving rise to the present Revisional Application may be summarized as under:-

Opposite party initiated a complaint case being Complaint Case No.6005 of 2002 against the petitioner under Section 138 of the Negotiable Instruments Act on the allegations that the petitioner took friendly loan from the opposite party and undertook to repay the same in terms of the agreement dated 13.03.2001. It was also alleged in the said petition of complaint that the accused person, to run his business took assistance of consultancy as per the terms of agreement dated 13.03.2001. Accordingly the accused person in discharge of his liability issued eight post-dated account payee cheques amounting to Rs.48,000/- in favour of the complainant on Bank of Baroda, Sadananda Road Brach, Kolkata-700026. The complainant deposited said eight cheques for encashment and all the cheques were dihonoured. Complainant came to know about the dishonour of those cheques from his Banker on 17.10.2002 that said cheques were dishonoured on the ground of 'payment stopped by drawer.' Complainant/opposite party issued legal notice demanding the amount covered by those eight cheques. Petitioner/accused sent a reply to that notice through his advocate denying his liability to pay.

After conclusion of trial the Learned Magistrate convicted the petitioner for committing an offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to suffer simple imprisonment for ten days and to pay compensation of Rs.55,000/- in default to suffer simple imprisonment for three months.

Being aggrieved by and dissatisfied with the judgment of conviction and order of sentence passed by the Learned Magistrate, the accused/petitioner preferred Criminal Appeal being No.1 of 2015. That appeal was dismissed on contest on 07.10.2015 by Learned Additional Sessions Judge, 9th Court, Alipore.

The said judgment and order passed by the Learned Judge in appeal is under challenge.

Opposite party/complainant did not turn up despite receipt of notice.

During the course of argument Learned Counsel for the petitioner has forcefully submitted that the cheques in question were not issued by the petitioners in discharge of his liability. According to his contention the complainant/opposite party has failed to discharge his burden by cogent and sufficient evidence that the complainant had required fund to give loan to the accused/petitioner. Learned Counsel has further contended that the cheques in question were issued on condition that the complainant would provide advice as a business consultant but the complainant did not render advice as he admitted the same in his evidence. He has submitted that in the instant case the question of existing liability for issuance of cheques does not arise. The impugned judgment and order has also been assailed by the Learned Counsel for the petitioner that the complaint proceedings under Section 138 of the Negotiable Instruments Act were barred by limitation. He has submitted that petition of complaint was filed beyond the period of limitation.

In support of his contention Learned Counsel for the petitioner has placed his reliance on the following decisions:-

i. Ram Dass Vs. Ishwar Chander & Ors. reported in AIR 1988 SC 1422;

ii. Rangappa Vs. Sri Mohan reported in AIR 2010 SC 1898;

iii. Damodar S. Prabhu Vs. Sayed Babala reported in AIR 2010 SC 1907;

iv. John K. Abraham Vs. Simon C. Abraham & Anr. reported in (2014) 2 SCC 236;

v. Vijay Vs. Laxman & Anr. citation (2013) 3 SCC 86

vi. Reverend Mother Marykutty Vs. Reni C. Kottaram & Anr. reported in (2013) 1 SCC 327.

From the submission made by the Learned Counsel for the petitioner as well as from the materials placed on record, it appears that admittedly the cheques in question were issued by the petitioner in favour of the complainant. cheques were dishonoured same for encashment.

It is also an admitted fact that all the when the complainant presented the In this connection Learned Counsel for the petitioner has argued that the cheques were issued in advance payment for consultancy charges which the complainant was required to give as per the agreement between the parties. He has contended that service was never rendered by the complainant and as such it cannot be said that the cheques were issued in discharge of liability. In this connection Learned Counsel has cited the decisions of Vijan Vs. Laxman & Anr. and Reverend Mother Marykutty Vs. Reni C Kotta Ram & Anr (Supra) and contended that the petitioner rebutted the presumption under Section 118 of the Act.

As per Section 118 of the Negotiable Instruments Act there is presumption that every negotiable instrument was made or drawn for consideration until the contrary is proved. The Negotiable Instruments Act contains two separate provisions viz 118 (a) and under Section 138 for raising presumption. The presumptions as mentioned in both the Sections are rebuttable presumptions. Whether the said presumptions have been rebutted or not would depend mainly upon the facts of the case and each case has to be judged on its own merit. During his examination under Section 313 of the Code of Criminal Procedure the petitioner stated that there was no existing enforceable liability to make payment and those cheques were issued towards advance for providing business consultancy he has also contended that such business consultancy was never provided by the complainant. From the materials placed on record it appears that there was a loan agreement between the parties. On the basis of that agreement the complainant agreed to give loan of Rs.3,000,00/- (Rupees Three Lakh) to the petitioner and the petitioner also agreed to pay interest @ 18%. The said loan agreement also contained the mode of payment of the loan amount. The said loan agreement mentioned about the issuance of post-dated cheques by the petitioner in favour of the complainant after receiving the cheques towards the loan amount. No evidence was adduced by the petitioner in support of his statement made during his examination under Section 313 of the Code of Criminal Procedure. In the instant case, the materials on record indicate the cheques in question were issued in discharge of liability of the petitioner. The decisions as relied on by the Learned Counsel for the petitioner have no manner of application in the present case.

A plea has been raised by the Learned Counsel for the petitioner that the complaint was time barred. It appears that similar plea was taken by the petitioner before the Learned Appellant Court. After considering the materials on record the Learned Judge observed that there was prolonged cease work called by Bar Council of West Bengal and as such the complainant could not file the petition of complaint within the period of limitation. The complainant filed the petition of complaint as soon as the cease work was called off. Learned Judge also observed that the fact of cease work observed by the members of the Bar was not disputed by defence. I do not find any reason to interfere with the observation made by the Learned Judge, Appellate Court in this regard.

In the present case the materials placed on record show that both the Learned Courts below came to the concurrent findings that the petitioner issued the cheques in question in discharge of his liability to repay the loan as par the loan agreement. Issuance of cheques in question is an admitted fact. Defence was taken by the petitioner that those cheques were issued by him for consultancy which the complainant was required to provide him. The said consultancy was not provided to him. But the petitioner has totally failed to discharge that burden by adducing cogent and convincing evidence. I do not find any ground to interfere with the concurrent findings of both the Learned Courts below.

It is well settled principle of law that in exercise of its power under Section 482 of the Code of criminal Procedure, the High Court should not in absence of perversity, upset concurrent factual findings of Trial Court and Appellate Court. Moreso, the High Court in exercise of its inherent power should not re-analyze and reassess the materials particularly the evidence on record.

On perusal of the entire materials on record, it can be said that the Learned Courts below have rightly come to the conclusion that the petitioner committed an offence punishable under Section 138 of the Negotiable Instruments Act.

The present application is devoid on merit and stands dismissed.

Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.