C.R.R. No. 387 of 2008 and C. R. A. N. No. 1433 of 2008. Case: 1.Sumit Ranjan Chakraborty 2. Tapas Kumar Nandi Vs 1. Tapas Kumar Nandi 2. Sumit Ranjan Chakraborty. High Court of Calcutta (India)
| Case Number | C.R.R. No. 387 of 2008 and C. R. A. N. No. 1433 of 2008 |
| Counsel | For Appellant: Amit Bhattacharjee, Ayan Bhattacharjee, Advs.and For Respondents: Sandipan Ganguly, Advs. |
| Judges | Kanchan Chakraborty, J. |
| Issue | Negotiable Instruments Act - Sections 138, 142, 143; Essential Commodities Act, 1955 - Section 7(1); Code of Criminal Procedure (CrPC) - Sections 251, 313, 357(3), 360, 361, 482; Probation of Offender Act, 1958 ; Children Act, 1960 |
| Citation | 2011 (5) CHN 124 |
| Judgement Date | February 17, 2011 |
| Court | High Court of Calcutta (India) |
Judgment:
Kanchan Chakraborty, J.
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The challenge in this application under section 397/401 read with section 482 of the Code of Criminal Procedure is to the judgement and order dated 22.12.2007 passed in Criminal Appeal No. 125 of 2007 by the learned Additional District and Sessions Judge, 8th Fast Track Court, Bichar Bhawan, Calcutta whereby and whereunder confirming the judgement and order dated 29.12.2006 passed by the learned Additional Chief Metropolitan Magistrate, Calcutta in C/828 of 2001 convicting the petitioner under section 138 of the Negotiable Instruments Act and sentencing him to suffer simple imprisonment for one month and to pay compensation of Rs.75,000/-. One Tapas Kumar Nandi, a partner of Ajay Fibre Glass Mouldings lodged one petition of complaint (hereinafter referred to as opposite party) in the Court of learned Chief Metropolitan Magistrate, Calcutta alleging therein that his firm sold and delivered F.R.P Moulded Net and Air Intake Guard to Sumit Ranjan Chakraborty, sole proprietor of M/s. Acme Engineering Company (hereinafter referred as the petitioner) amounting to Rs.1,63,355/- under Challan No. A.F.M 03/2001-2002 dated 30.04.2001. In part discharge of the said legal debt and liability arising out of that transaction, the petitioner issued one cheque of Rs.63,358/- dated 30.07.2001 being Cheque No. 502086 drawn on State Bank of India, Mahatma Gandhi Road Branch, Calcutta in the name of M/s. Ajay Fibre Glass Mouldings. The opposite party presented the cheque for encashment to its banker U.B.I, College Street Branch. The cheque was returned dishonored with bank memo on 03.08.2001 indicating that the petitioner issued instruction to the bank to "stop payment". Though the opposite party thereafter issued a demand notice through his Advocate by registered post with A/D. discharged on 06.08.2001. The notice was returned back unserved on 20.08.2001 with postal remark "not claimed" dated 17.08.2001. So, the opposite party lodged the complaint on 06.09.2001 praying for prosecuting the petitioner under section 138 of the Negotiable Instruments Act.
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Upon receiving the petition of complaint, the learned Additional Metropolitan Magistrate, Calcutta examined the complainant on S/A, perused the materials placed before it and directed to issue process against the petitioner. The petitioner entered appearance and pleaded not guilty to the acquisition alleged while examined under section 251 of the Code of Criminal Procedure and, as a result, the trial commenced. 3(three) witnesses were examined and cross-examined on behalf of the opposite party while the petitioner examined himself as solitary defence witness after his examination under section 313 Cr. PC. The challan dated 30.04.2001, Cheque No. 502086 dated 30.01.2001, return memo, demand notice, authorization letter, statement of accounts etc. were admitted into evidence and marked exhibit on behalf of the opposite party. No document, whatsoever, was filed and admitted into evidence on behalf of the petitioner.
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The learned Additional Chief Judicial Magistrate, Calcutta upon consideration of the evidence, oral and documentary, found the petitioner guilty of offence under section 138 of the N. I. Act and passed the judgement and order mentioned earlier. The petitioner, not having satisfied with the judgement and order dated 29.12.2006 passed by the ld. ACMM, Calcutta, preferred an appeal before the learned Chief Judge, City Sessions Court, Calcutta which was ultimately converted into a criminal revision and was heard and disposed of by learned Additional District and Sessions Judge, 8th Fast Track Court No. 8 on 22.12.2007 confirming thereby the judgement and order passed by the ld. ACMM, Calcutta. The said order dated 22.12.2007 has been impugned in this revisional application filed by the petitioner on the following grounds:-
(a) That the learned Appellate Court being First Appellate Court ought to have reappreciated the entire evidence independently, but that was not done;
(b) That the learned Judge erred in not taking into notice that there was manifest irregularity and illegality in recording plea of the petitioner under section 251 of Cr. PC and, thus, the entire proceeding was void and nullity in the eye of law;
(c) That under section 143 of the N. I. Act has amended with effect from 06.02.2003 a proceeding under section 138 of the N.I. Act to be conducted as a summary proceeding which is mandate of law. The learned Judge was oblivious to the fact that owing to non-compliance with that mandatory provision of law, the entire proceeding became illegal and was liable to be set aside.
(d) That both the Trial Court and the learned Judge did not give the petitioner any opportunity of being heard while awarding compensation which is utter violation of the mandate of the Apex Court in Mangilal vs. State of Madhya Pradesh;
(e) That neither the Trial Court nor the learned Revisional Court assigned any reason for not invoking the provisions of section 360 read with section 361 of the Code;
(f) That the learned Trial Court as well as the learned Revisional Court failed to appreciate evidence on record on its proper perspective.
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Mr. Ayan Bhattacharjee, learned Counsel for the petitioner advances manifold contentions. The main thrust of his contention is
(1) The ld. Trial Court did not examine the petitioner under section 251 of Cr. PC in accordance with law;
(2) That the learned Trial Court and learned Revisional Court failed to take notice that the opposite party has no locus standi to initiate the criminal action in view of section 142(b) of the N. I. Act because the opposite party instituted the case in his personal capacity not as an authorized partner of the firm;
(3) That the Trial Court as well as the learned Revisional Court failed to afford the petitioner any opportunity of being heard while awarding compensation under section 357(3) of the Code and lastly
(4) That no reason was assigned by the learned Trial Court and learned Revisional Court under section 361 of the Code for not extending the benefits of section 360 of the Code to the petitioner.
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Mr. Sandipan Ganguly, learned Counsel appearing for the opposite party submits that this second revisional application is not maintainable in view of the provisions of section 397 (3) read with section 399(3) of the Code. He submits further when the petitioner...
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