SHRI DIPANKAR MAJUMDER Vs. SHRI SANDIPAN GHOSH

JUDGEMENT

(1.) By means of this petition filed under Section 397(1) read with Section 401 of the Cr.P.C. The petitioner has challenged legality of the judgment dated 23.11.2015 delivered in Criminal Appeal No. 03 of 2015. The petitioner had been convicted for committing offence punishable under Section 138 of the Negotiable Instruments Act, 1881 [in short N.I. Act] by the Additional Chief Judicial Magistrate, West Tripura, Agartala by his judgment and order dated 29.12.2014 delivered in N.I.21 of 2012. Pursuant thereto, the petitioner was sentenced to pay a fine of Rs.3,85,000/ - in default to suffer simple imprisonment for

(2.) (two) years. The said judgment dated 29.12.2014 was challenged by the petitioner by filing an appeal under Section 374(3) of the Cr.P.C. being Criminal Appeal No.03 of 2015 in the court of the Sessions Judge, West Tripura, Agartala. By the said judgment dated 23.11.2015, the appeal was dismissed observing that though the complainant [the respondent No.1] in his examination -in -chief [filed by the affidavit] has stated that the accused issued the cheques 'to secure' the debt of Rs.3,50,000/ -, it is more than apparent that when the cheques were issued, already there was an outstanding loan taken by the accused with the promise to repay it after a month. So, despite using the words ''to secure the debt'' in his affidavit in chief and this not being the case of the complainant, it cannot be accepted that the cheques were issued as security to the loan. 2. It was the specific case of the complainant that the loan was taken on 12.08.2011 on promise of repayment after a month. On expiry of the said period for repayment, the respondent No.1 demanded the amount on 12.09.2011 when the petitioner handed over two cheques to the respondent No.1, one being dated 16.09.2011 and another being dated 17.09.2011 drawn on State Bank of India, Agartala branch. The respondent No.1 deposited the cheques with the Syndicate Bank, Agartala branch on 20.09.2011 and 21.09.2011. But these were returned unpaid due to insufficiency of fund. Following this, the respondent No.1 met the petitioner when the petitioner requested him to wait for 2(two) months accordingly the respondent No.1 again met the petitioner on 21.06.2011. Being assured that there was sufficient fund in his bank account, the respondent No.1 deposited the cheques again on 28.12.2011. But the cheques were returned for the second time on the ground of insufficient fund. On the face of such development, the respondent No.1 served the notice on 04.01.2012 demanding for the payment of the amount in the cheques within 15(fifteen) days from the date of receipt of the notice. Despite having received the notice on 09.01.2012, the petitioner did not pay the money or part thereof. As a result, the cause for filing the complaint arose on 22.01.2012 and within the stipulated term the complaint was filed. The only ground that was taken in the appeal is that two cheques were handed over by the accused -complainant as security to secure the loan for which Section 138 of the N.I. Act cannot be attracted. The said ground of objection has not been accepted by the impugned judgment assigning the reasons as noticed above. The similar ground has been asserted again to question the judgment dated 23.11.2015 by the petitioner. According to him, the cheques were for securing the loan not for discharging the liability. Unless the cheques [Negotiable Instruments] are issued for discharging the liability, no penal action under Section 138 can be taken.

(3.) There is no dispute that the complainant, the respondent No.1 herein as PW -1 in his cross -examination has stated as under: