KASHINATH SHAW Vs. RUPESH GUPTA

JUDGEMENT

(1.) The present appeal has been preferred against the judgment and order dtd. 16/10/2020 passed by the learned Judicial Magistrate, 7thCourt, Alipore, South 24 Parganas in Case No. C/5192 of 2010 under Sec. 138 of the Negotiable Instrument Act, wherein the learned trial Court was pleased to acquit the accused from the charges.

(2.) The genesis of the case was a complaint initiated by one Kashinath Shaw (hereinafter referred to as 'the complainant') against Rupesh Gupta (hereinafter referred to as 'the accused/respondent'). It was alleged that the complainant is a businessman and absolute owner of a piece and parcel of land measuring 90.75 decimals which was conveyed to the opposite party and one of his relation for a total consideration of Rs.45,00,000.00. Against the total consideration the accused respondent made payment by cash and a cheque being cheque no.036692 of Rs.10,00,000.00 dtd. 10/4/2010 in favour of the complainant. The said cheque was drawn on Central Bank of India, Ultadanga Branch which was signed by the accused no.1 as the proprietor of Om Kutir Udyog. The said cheque was deposited by the complainant with his banker State Bank of India, Garia Branch on 19/4/2010. However, the same was dishonoured with the remarks "Exceeds arrangement". The accused thereafter requested the complainant to wait for some time and thereafter deposit the cheque. The said cheque was again presented on 8/6/2010 with the complainant's banker but the same was again dishonoured with the endorsement "Exceeds arrangement", the intimation of such dishonour was received by the complainant on or about 17/6/2010. The complainant issued demand notice dtd. 21/6/2010 which was despatched on the same date, wherein the amount covered by the dishonoured cheque was demanded to be paid within 15 days from the date of receipt of such notice. It has been alleged that in spite of receiving the notice the accused persons failed and neglected to make any payment. The postal endorsement reflected the remarks "left" and the acknowledgement card was received by the complainant on or about 21/7/2010. The complainant thereafter filed the complaint. On receipt of the complaint the learned Magistrate was pleased to take cognizance of the offence and transfer the case to the Learned Judicial Magistrate, 7thCourt, Alipore. Pursuant to issuance of process the accused/ respondent appeared before the learned trial Court and was released on bail. The substance of the accusation was read over and explained to the accused under Sec. 251 Cr.P.C. to which he pleaded not guilty and claimed to be tried.

(3.) In order to prove its case the complainant examined himself as prosecution witness and also relied upon 7 documents which included the cheque, marked as Ext.1; two bank return memo, marked as Ext.2 series; demand notice marked as Ext.3; postal receipt marked as Ext.4; A/D Card marked as Ext.5; undelivered envelope containing demand notice marked as Ext.6 series; the certified copy of the written statement filed by the accused in Title Suit No. 70/2011 before the learned Civil Judge, Junior Division, Barrackpore marked as Ext.7. The accused did not adduce any oral evidence but in course of cross-examination of the prosecution witness relied upon 9 (nine) certified copy of Sale Deed which were marked as Ext.A series (Ext. A - Ext. A/8). The learned trial Court on appreciation of the materials placed by the prosecution and the defence was pleased to observe that the main contention of the complainant relate to nine deeds executed in favour of the accused for which a sum of Rs.35,00,000.00 was received by the complainant and a sum of Rs.10,00,000.00 was received by cheque. According to the learned Magistrate Ext.A series reflects that a sum of Rs.45,00,000.00 was received and the said Ext.A did not reflect that any consideration money was to be received through cheque (Ext.1). Learned Magistrate also observed that complainant during cross-examination voluntarily stated that there was a separate demand of Rs.10,00,000.00 through cheque but no such document was produced before the Court. Learned Magistrate further observed that paragraph 11 of Ext.7 refers to the cheque which was used for purchasing remaining land of 3 cottah 7 chittaks by the accused and the complainant did not execute or register the deed for the same. Learned Magistrate was pleased to hold that the complainant was confronted with his own document, as Ext.A series (Sale Deed) to dislodge the prosecution case and which the complainant failed and the accused as such was entitled to be acquitted.