Samar Kumar Biswas vs Nirmal Kushari and Others

Sudip Ahluwalia, J.—This Revisional Application has been preferred against the Judgement and Order dated 20th day of September, 2014 passed by the Learned Additional District and Sessions Judge 17th Court, Alipore, South 24-Parganas. The Ld. Judge was pleased to dismiss the Criminal Appeal No. 63/2014 after affirming the Judgement and Order of conviction under Section 138 of Negotiable Instruments Act, and the Sentence to pay a fine of Rs. 2,00,000/-, in default, to undergo Simple Imprisonment for a period of One year, passed by the Learned Judicial Magistrate (1st Class) 4th Court, Alipore, South 24-Parganas in case No. AC 336/07/T.R. 1932/2007 on 18th February, 2014, with a direction that out of the fine amount, Rs. 1,75,000/- was to be paid to the complainant as compensation in terms of Section 357(3) Cr.P.C.

It may be mentioned that at the time of admission the Hon''ble Justice Ashim Kumar Roy after hearing, by Order dated 17.12.2014 directed the matter to come up as a ''contested application'' with a further direction that the order of execution of sentence would remain suspended on condition that the petitioner would deposit a sum of Rs. 75,000/- in the Trial Court towards the payment of fine. The said amount was thereafter deposited by the petitioner in compliance of the order.

The case of the Complainant/Opposite Party in the Ld. Court below was that he "on the request of the petitioner/accused gave accommodation loan of Rs. 1,60,625/- to the petitioner by a way of a cheque for Rs. 1,50,000/- being No. 311896 dated 24.08.2006 drawn on Allahabad Bank, Gol Park Branch, and that he gave an additional sum of Rs. 10,625/- in cash to the petitioner. Subsequently the petitioner in discharging his liability against the aforesaid accommodation loan issued two cheques being No. 087676 dated 24.06.2007 for Rs. 1,50,000/- and Cheque No. 084690 dated 30.06.2007 for Rs. 10,625/- drawn on State Bank of India, Dhakuria Branch, Kolkata. But when the Complainant/Opposite Party No. 1 deposited the cheques with his banker, i.e., the Allahabad Bank, Gol Park Branch, Kolkata, both the cheques were dishonoured by the drawee bank for the reason "insufficient fund". Though the Complainant/Opposite Party No. 1 intimated the said fact of dishonour of cheques to the petitioner and asked him to repay the said loan amount the petitioner failed to do so. The Legal Demand Notice was served upon the petitioner by the Complainant/Opposite Party No. 1, but the petitioner failed to pay the loan amount as a result of which the complaint was filed with a prayer to issue process against the petitioner under Section 138 of Negotiable Instrument Act and try him in accordance with law.

After examining both sides and their witnesses the Ld. Trial Court ultimately found the petitioner Guilty of the offence under Section 138 of the NI Act and passed its impugned Judgment of conviction and sentence which was subsequently upheld by the Ld. Appellate Court. He is specifically aggrieved that neither of the Courts below have gone into the contention raised on his behalf that there was no loan/accommodation loan for an amount of Rs. 1,60,625/- (One Lakh Sixty Thousand Six hundred Twenty Five) as alleged by the complainant. He has further contended that the documents on the basis of which both the Courts below determined that the loan as claimed by the complainant was actually taken by the petitioner, are not complete or reliable, and in any case, the complainant had failed to prove his allegation that the amount of Rs. 10,625/- (Ten Thousand Six hundred Twenty Five) out of the alleged loan amount was at all delivered to the petitioner in cash, since not even the name of the person who allegedly delivered the same to him was revealed, much less such person/messenger was actually examined as a witness to prove this statement.

The petitioner has also drawn attention to the fact that at the relevant point of time, he was the Headmaster and the complainant was the Secretary of the Managing Committee of Dhakuria Shri Ram Roy Institution (Govt. Aided High School) situated at 10 and 11 Gariahat Road. (South) Kolkata - 700031. He claims to have issued the impugned two cheques being No. 087676 for Rs. 1,50,000/- and cheque No. 087690 for Rs. 10,625/- which are Exhibits 3 and 2 respectively to the Complainant/Opposite Party No. 1 as Security/Guarantee in presence of members of the managing committee of the School where the petitioner was the Headmaster and the Complainant/Opposite Party No. 1 was the Secretary of the managing committee. According to the petitioner, the cheques were not given to the Complainant/Opposite Party No. 1 in order to discharge of any legally enforceable debt or liability. The Complainant/Opposite Party No. 1 was the President of the Managing Committee of the Dhakuria Shri Ram Roy Institution from 2004 to end of the 2005. Thereafter he was the Secretary from the end of the year 2005 to February, 2007. For urgent needs of any necessary construction work and supply of building materials the Complainant/Opposite Party No. 1 used to supply the same and used to do construction work on his own accord by funding it himself. In view of the urgent need of the construction work of the 2nd floor of the building a Committee Meeting was held in July/August 2006 and the Complainant/Opposite party No. 1 asked for a Guarantee and accordingly the petitioner had given two personal cheques as Guarantee cheques in presence of members of the Managing Committee on behalf of the School. This contention of the petitioner was supported by Ashok Kr. Halder who deposed as DW 2 and he was one of the members of the Managing Committee at the relevant time.

The petitioner has specifically contended that -

"As Headmaster of the School the petitioner made payment on behalf of the School to the Complainant/Opposite Party No. 1 who as a President/Secretary of the managing committee of the school used to do construction work of the school by himself providing fund when there was urgent need which is established from exhibits 10, 11, 12, 13 and 14. In urgent need of work in the school the Complainant/Opposite Party No. 1 used to provide fund and when the fund was allotted from the Government the money was paid to the Complainant and as such a relationship between the petitioner and Complainant/Opposite Party No. 1 was gradually developed in regard to the transaction of the money. The Complainant/Opposite party No. 1 used to submit bill receipt challan and the petitioner as a Headmaster paid the same on behalf of the School. In July/August 2006 there was an urgent need of one room for the School and there was no fund available for such construction. School Committee Meeting was held on 24.08.2006 where Ranjan Kumar Bose, Nithailal Saha, Ashok Kumar Halder DW 2, Nobendu Maity, one female member were present. In the meeting the Complainant/Opposite Party No. 1 was willing to provide fund for the construction work asked for a cheque as guarantee. All the committee members agreed and insisted him to hand over cheque as guarantee. This fact was supported by DW 2 Ashoke Halder. Accordingly he issued impugned cheques as Security/guarantee on behalf of the school in good faith and not in discharge of any enforceable debt and the complainant fraudulently misused the impugned two cheques and nothing else."

The petitioner has relied on the decision of the Supreme Court in Vinita S. Rao Vs. M/s. Essen Corporate Services Pvt. Ltd., . The relevant Para in the judgment is 23 on Page 736, wherein it has been observed -

"24. On the basis of the averments made in the complaint and on the basis of the above letter, it is contended by learned counsel for the respondents that the above cheques were issued as a security; that there was no crystallized liability or outstanding dues and that there was no legally recoverable debt and, therefore, the complaint was not tenable. On the other hand, it is strenuously contended by the counsel for the appellant that it is abundantly clear from the above letter that the cheques were issued for a crystallized liability or a legally recoverable debt. Since the High Court has not dealt with this submission at all, we deem it appropriate to remand the matter to the High Court for that purpose. Hence, while holding in favour of the appellant that the complaint can be filed by a power of attorney holder and on that ground complaint cannot be held not maintainable and that the power of attorney was very much on record, we remand the matter to the High Court with a request that the High Court should hear both sides and decide whether the cheques in question were issued as a security or for the purpose of repayment of legally recoverable debt. Considering the fact that the complaint is dated 03/03/2004, we request the High Court to decide the above question as early as possible and preferably within a period of eight months from the date of receipt of our order by it. We make it clear that the remand is only limited to the above stated question and the scope of remand shall not be extended any further as we have already answered the other questions which were raised before us."

This Court has perused the two main documents led into appear from the complainant side. Exhibit 8 happens to be the petitioner''s own signature on the Letter purportedly given by him to the complainant on 22nd of August, 2006 in which he had allegedly requested the complainant to give him a loan for of Rs. 1,50,000/- (One Lakh Fifty Thousand) only as he was in acute need of money for his personal affairs, and in that letter he had apparently promised to repay the loan amount latest by the month of June, 2007. Thereafter Exhibit 9 is the receipt given by the petitioner entirely in his own hand writing in which he has acknowledged receipt of the amount of Rs. 1,50,000/- (One Lakh Fifty Thousand) from the complainant by way of cheque No. 311896 dated 24.08.2006 drawn on the Allahabad Bank, Gol Park Branch, as loan. This receipt is also dated 24.08.2006 in the own handwriting of the petitioner.

Now he is aggrieved that the Ld. Courts below did not consider his contention that the money in question was actually delivered to him in his capacity at Headmaster of the School for the purpose of making urgent constructions/repairs in the school premises and that the cheques in question were given by him only as a security for payment of the School loan. He is also aggrieved that the Ld. Courts below did not place any reliance on the deposition of his witness namely Shri Ashok Kr. Halder (DW 2) who had stated that being one of the Teachers of the School he had participated in the Committee Meeting in which the agreement regarding lending of money by the complainant to the School Headmaster for urgent repairs against issuance of cheques by way of security for return of the loan amount was made. However the petitioner in spite of being the Headmaster of the School was not able to place on record any document relating to the minutes of the alleged meeting in which such decision was taken. Even otherwise if it is assumed for the sake of arguments that the amount of Rs. 1,50,000/- (One Lakh Fifty Thousand) was actually given to the petitioner by the complainant for the purpose of effecting necessary repairs in the school premises, in his capacity as School Headmaster, still it was his bounden duty to repay the same when the time arrived or at least, to in response to the Demand Notice, inform the complainant that allotment of funds for the school had still not been received on account of which it was not possible to return the money immediately.

It is a settled maxim of law that "Witnesses can lie, but documents cannot". The documentary evidence on record clearly shows that the petitioner had himself admitted in writing that the loan of Rs. 1,50,000/- (One Lakh Fifty Thousand) by way of the cheque dated 24.08.2006 that the amount of Rs. 1,50,000/- (One lack Fifty Thousand) was taken by him as "Loan for his personal affairs." As such it would not be irrational to place reliance on the suggestion made on behalf of the complainant to DW 2 in his cross-examination to the effect that the said witness, who was a Teacher in the School concerned, was deposing falsely only to save his Headmaster.

However, there is no denial of the fact that the complainant''s side has not been able to prove by any cogent evidence that a separate amount of Rs. 10,625/- (Ten thousand Six hundred Twenty Five) was also given as loan to the petitioner in cash through any messenger, since neither the name of such messenger was revealed, nor he was examined as a witness. There is also no document like any letter of request in the nature of the Exhibits 8 and 9, as had been issued in respect of the loan for Rs. 1,50,000/- (One Lakh Fifty Thousand) granted separately.

In the circumstances, this Court therefore finds only partial merit in this Revisional application.

The impugned Judgment of the Ld. Trial Court is therefore modified to the extent that it is found that the petitioner had legal liability to pay up an amount of Rs. 1,50,000/- (One Lakh Fifty Thousand) only for which one of his cheques was dishonoured. He was however under no such liability in respect of the additional amount of Rs. 10,625/- (Ten thousand six hundred Twenty Five). Consequently while upholding the order of conviction under Section 138 of the NI Act, the fine of Rs. 2,00,000/- (Two Lakhs) imposed upon the petitioner is reduced to Rs. 1,85,000/- (One Lakh Eighty Five Thousand), but the default to under go simple imprisonment for one year in the event of its non-payment stands. Out of this reduced fine amount, Rs. 1,60,000/- (One Lakh Sixty Thousand) only will be payable to the complainant.

The Petitioner is directed to appear in the Ld. Trial Court within 15 days from date for paying the fine or in default to serve out the sentence of imprisonment.

The Revisional Application is thus disposed off. The application being C.R.A.N. 1264 of 2015 therefore becomes redundant and stands rejected.