TMI Blog2022 (9) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 357 Cr.P.C. needs no interference because the petitioner has been able to dodge paying his lawful debt for more than 11 years. Criminal petition dismissed. - Case No. : Crl.Pet./730/2019 - - - Dated:- 9-9-2022 - Honourable Mr. Justice Kalyan Rai Surana For the Petitioner : MR. S Islam For the Respondent : MR. S S S Rahman ORDER Heard Mr. S. Islam, learned counsel for the petitioner and Mr. S. Nawaz, learned counsel for the respondent. 2. By filing this application under section 482 Cr.P.C., the petitioner, who has been convicted in a proceeding initiated under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act ) which was affirmed by the learned lower appellate Court has assailed the judgment and order dated 16.05.2019, passed by the learned Sessions Judge, Tinsukia in Crl. Appeal No. 5(1)/2018, thereby affirming the judgment dated 20.01.2018, passed by the learned Addl. Chief Judicial Magistrate, Tinsukia in N.I. Case No. 34/2012 and sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.10,00,000/- (Rupees ten lakh only) under section 357 Cr.P.C. 3. The part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and letter dated 03.06.2011 to bank (Ext.B). 6. The learned trial Court, i.e. the Court of Addl. C.J.M., Tinsukia after discussing the statement in the complaint, and on examining the evidence on record, formulated the following point of determination whether the accused Sri Naren Gogoi issued cheque nos. 098866, 098867, 098869, 098870, 098871, and 098872 for Rs.1,00,000/- each against the remaining liability of Rs.6,00,000/- against the agreement dated 29.03.2011 to the complainant in discharge of his legally enforceable debt and the same were dishonoured by the banker of the accused person on being presented for encashment due to account closed of the accused person and that the accused failed to pay the cheque amount when demanded through legal notice and thereby committed and offence punishable u/s. 138 of the Negotiable Instruments Act? 7. On examination of the evidence on record, the learned trial Court had relied on the evidence on PW nos. 2 and 3 to the effect that the agreement was entered into by the parties in their presence and they had put their signatures as witnesses in the agreement. The learned Court held that the lack of signature of the parties in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of dishonour of cheque, punishable under section 138 of the NI Act. The learned trial Court refused to give the petitioner the benefit of section 360 Cr.P.C. or under Probation of Offenders Act, 1958 and accordingly, the petitioner was convicted and was sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.10,00,000/- (Rupees ten lakh only) under section 357 Cr.P.C. 8. The petitioner, who was aggrieved by the judgment and order convicting him and sentencing him as indicated herein before, had preferred an appeal. The said appeal was registered and numbered as Crl. Appeal No. 5(1)/2018, which was heard by the learned Sessions Judge, Tinsukia. The following point of determination was framed by the learned appellate Court, viz., whether the trial Court judgment suffers from any infirmity or illegality? 9. It may be stated that the learned lower appellate Court had recorded that as the petitioner had agreed that the evidence available in the case has proved the offence against him, the entire evidence would not be discussed as the only defence taken in the case was that the case was not within the purview of section 138 of the NI Act. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired interference with the judgment passed by both the learned Courts below, and (ii) whether there was any abuse of the process of Court. However, when revision is filed under section 397 read with section 401 of the Cr.P.C., the Court has the power to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed by the Court. 14. In the present case in hand, the petitioner has urged 12 ground nos. (a) to (l) to assail both the impugned orders. The gist of the said twelve grounds are as follows, viz., (a) the Courts below had erred in law; (b) the Courts below had committed gross illegality and the judgment are contrary to the mandatory provisions of law; (c) the Courts below have failed to consider and appreciate the evidence and exhibits in true perspective; (d) the Courts had failed to consider the FIR and intimation to the bank about the loss of cheques; (e) the Courts had failed to consider discrepancies in the deposition of witnesses and documentary evidence to the effect that the first page of agreement did not contain signature and the petitioner had given his signature on a blank paper; (f) the respondent- complainant had faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personnel from Tinsukia P.S. and in the absence of having Ext.B proved through the Manager of the Bank by calling the original record, the trial Court has neither erred, nor committed any illegality in discarding the Ext.A and Ext.B. The contents of FIR (Ext.A) and intimation to bank (Ext.B) was rightly discarded by the learned trial Court because out of these ten cheques allegedly lost, the petitioner as DW-1, in his evidence, had accepted that he had issued cheque no. 098868 to PW-2. There is no explanation how did the petitioner get access to one out of ten lost cheques which according to the petitioner was issued to the PW-2. The reasons why the learned trial Court had discarded Ext.A and Ext.B has already been narrated herein before and therefore, it has not been repeated herein. The learned trial Court had rightly doubted the letter dated 03.06.2011 to the bank as it was received by the bank official on 02.06.2011, which makes it not reliable in the absence of any explanation by the DW-1 in his evidence. The learned counsel for the petitioner has neither been able to show any provision of law nor any case citation was shown to demonstrate that while trying a complaint case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id to be not maintainable merely because the cheques were not account payee cheques. 21. The ground no. (h) is also devoid of any merit because as indicated herein before, and also mentioned in the judgment of the learned trial Court, the petitioner had exhibited as many as 14 documentary exhibits and the petitioner had not got his objection noted when the documentary exhibits were admitted in trial and considered at the time of hearing. The admissibility of any of the exhibits has not been questioned by the petitioner. 22. The ground no. (i) is equally devoid of any merit because it has been mentioned herein before that the learned trial Court had duly considered the provisions of section 360 Cr.P.C. as well as the provisions of the Probation of Offenders Act, 1958. 23. The petitioner had issued six cheques to the respondent from an account which was closed. In the said context, it is no longer res integra that if the cheque is dishonoured as account is closed after issuing the cheques, the offence punishable under section 138 of the NI Act has been made out. If one needs any authority on the point, the case of Laxmi Dyechem (supra) , may be referred to. 24. As on fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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