TMI Blog2021 (4) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... mittedly the petitioners were jointly carrying on partnership business of manufacturing and selling of bricks in the name of MAA Brick Society and they used to operate the accounts of their company in their joint names. It has been proved beyond doubt that the complainant supplied coal to them for which they had an existing liability to the complainant and in the discharge of such liability the petitioners jointly issued the impugned cheque to the complainant which was later dishonoured for insufficiency of fund. The courts below have returned the findings of guilt of the petitioners on proper appreciation of evidence and held the petitioners guilty and sentenced them appropriately. Revision dismissed. - Crl.Rev.P.No.59 of 2018 - - - Dated:- 28-4-2021 - HON BLE MR. JUSTICE S.G. CHATTOPADHYAY For the Petitioner(s) : Mr. D K Daschaudhury, Adv. For the Respondent(s) : Mr. Ratan Datta, PP. Ms. S. Chakraborty, Adv. JUDGMENT [1] Petitioner Balaram Chowdhury was convicted for commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1981 and sentenced to pay a fine of ₹ 1 lakh with default stipulation by the Judicial Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner and accused Amiya Gopal Datta. [3] The trial court took cognizance of offence punishable under Section 138 of the NI Act on the basis of the said complaint lodged by Sri Manik Debnath [PW-1] and summoned the accused persons to appear before the court. When the accused persons appeared before trial court, learned trial judge stated the particulars of the offence to them in terms of Section 251 Cr.P.C. which is as under: That both of you on 21.08.2012 in discharge of your liability issued a Cheque of ₹ 1,00,000/-(Rupees one lakh)drawn on Tripura State Co-operative Bank Ltd., Manubazar Branch in favour of the complainant Sri Manik Debnath from your CD Account No.292 maintained in the name of MAA Bricks Society , Rupaichari of which both of you are the owners. That the said cheque issued by you was dishonoured by your bank on account of insufficiency of fund in the account maintained by you, by their cheque return memo dated 21.08.2012. Thereafter, you also failed to make payment of the said cheque amount to the complainant within the prescribed period even after receipt of due demand notice from the complainant. And therefore, both of you have committed offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd notice issued by the complainant has been marked as Exbt.4. [7] Cross examination of PW-1 is very relevant. Accused petitioner denied the whole case through the cross examination of PW-1. It was suggested to the PW on behalf of the accused petitioner that said cheque of 01 lakh was never issued and sum of ₹ 20,000/- in cash was not also paid by the petitioner to the PW. The PW denied both of these suggestions. PW was also made to say that he submitted no documentary evidence to prove supply of coal to their brick kiln. [8] In his brief statements PW-2 Sapan Das who is an advocate by profession stated that he issued demand notice [Exbt.6] on behalf of the complainant to accused Balaram Chowdhury and Amiya Gopal Datta. There was no cross examination of the PW-2 on behalf of the accused persons. [9] PW-3, Jambahadur Reang stated that he was posted as the branch manager of the Tripura State Cooperative Bank at its Manubazar branch at the relevant time. On 21.08.2012, he received cheque bearing No.172757 issued in favour of complainant Manik Debnath [PW-1] by accused Amiya Gopal Datta and Balaram Chowdhury who were having CD account No 292 in the bank in the name of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel that the prosecution has not been able to prove the case against the accused beyond reasonable shadow of doubt and therefore, the courts should have given the benefit of doubt to the petitioner. In support of his contention Mr. Daschowdhury has relied on the decision of the Apex Court in AJIT SAVANT MAJAGVAI VS. STATE OF KARNATAKA reported in (1997) 7 SCC 110. On the terms aforesaid, learned counsel has urged the court for acquittal of the petitioner. [13] Ms. S. Chakraborty, learned advocate appearing for the respondent on the other hand has argued that whereas one of the convicts who jointly signed the impugned cheque with the petitioner has paid the fine, pursuant to his conviction and sentence without disputing his signature on the cheque, the present petition filed by the other convict is liable to be dismissed. Further submission of Mr. S. Chakraborty, learned counsel of the respondent is that there is no reason to interfere with the concurrent findings of the courts below. Learned counsel, therefore, urges for dismissal of the revision petition. [14] The impugned judgement of the learned Sessions Judge demonstrates that he compared the disputed signat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sending the impugned cheque to hand writing expert for examination. [18] As contended by the petitioner he filed a petition at the trial court making a prayer before the court for sending the questioned cheque [Exbt.3] for the opinion of hand writing expert which was rejected by the trial court. It appears from the lower court record that after the case was posted for argument on 17/11/2015, the present petitioner along with co accused Amiya Gopal Datta, jointly filed a petition at the trial court on 17/11/2015 requesting the court to send their specimen signatures received from their bank along with the impugned cheque to the hand writing expert for examination and expert opinion. By a detailed order dated 26/11/2015, the trial court rejected the said petition by observing as under: The OP has been provided adequate chance to rebut the evidence of the petitioner by adducing his own evidence and the matter is fixed for argument and under the circumstances it would not be proper to turn back the clock without any justifiable ground since, the judgment would be prepared considering the entire evidence on record. In view of the same the payer is rejected. [19] In the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application under Section 243 Cr.P.C. without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) Cr.P.C. refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable. [20] Having placed reliance on decision of the Apex Court in Ajit Savant Majagvai vs. State of Karnataka reported in (1997) 7 SCC 110, counsel of the petitioners argued that it has been held by the Supreme Court that in the event of slightest doubt, the court should leave the matter to the wisdom of experts. According to learned counsel, since the petitioner disputed his signature and cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted signature of handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not power to compare the disputed signature with admitted signature as this power is clearly available under Section 73 of the Act. [21] The impugned judgment of the Sessions Judge would demonstrate that in the given facts and circumstances of the case, the learned Sessions Judge in exercise of his power under Section 73 of the Evidence Act compared the signature of the petitioner appearing on the disputed cheque [Exbt.3] with his signature appearing on his statement recorded under Section 313 Cr.P.C. and came to the conclusion that petitioner jointly signed the disputed cheque as one of the partners of MAA brick society with convict Amiya Gopal Datta. While doing so, the Sessions Judge also observed in his judgment that another partner of the petitioner namely Amiya Gopal Datta who was also convicted and sentenced along with the petitioner did not challenge his conviction and sentence and he had already paid the fine in terms of the sentence. [22] Learned counsel appearing for the petitioner has emphasised on the rejectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. (3) The Magistrate may, before summoning any witness on an application under sub- section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court. B.- Cases instituted otherwise than on police report [24] Admittedly the petitioners were jointly carrying on partnership business of manufacturing and selling of bricks in the name of MAA Brick Society and they used to operate the accounts of their company in their joint names. It has been proved beyond doubt that the complainant supplied coal to them for which they had an existing liability to the complainant and in the discharge of such liability the petitioners jointly issued the impugned cheque to the complainant which was later dishonoured for insufficiency of fund. The courts below have returned the findings of guilt of the petitioners on proper appreciation of evidence and held the petitioners guilty and sentenced them appropriately. There is no infirmity in their judgments. As a result, the revision petition stands dismissed. [25] Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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