GAURANGA SARKAR Vs. BISWAJIT SARKAR

JUDGEMENT

(1.) This appeal is directed against the judgment and order of acquittal dated 31.7.01 passed by the learned Judicial Magistrate, 5th Court, Alipore in Case No. C-2636/ 97 (T.R. No. 797/97) under section 138 of the Negotiable Instruments Act (in short N.I. Act), 1881 and acquitting the accused respondent under section 255 of the Code of Criminal Procedure (in short Code), 1973.

(2.) The prosecution case was started on the basis of complaint lodged by the appellant complainant against the accused respondent in the Court of the learned Sub-Divisional Judicial Magistrate (in short SDJM) at Alipore alleging therein that he is the proprietor of Sarkar & Co. having its shop at 76/1, Mahatma Gandhi Road within P.S. Thakurpukur dealing in hardware and building materials. The accused respondent took materials from his shop on credit and on account of payment of price of such materials, the accused issued three A/c payee cheques bearing Nos. 493627 dated 30.10.97, 493628 dated 30.10.97 and 493633 dated 3.11.97 for Rs. 30,000/-, Rs. 20,000/- and Rs.10,000/- respectively drawn on UCO Bank, Tollygunj Branch. The appellant presented the said cheques in his bank, viz. United Bank of India, Paschim Putiary Branch and all the said cheques were dishonoured with cheque returning memo dated 13.11.97 with endorsement 'exceeds arrangement'. On 18.11.97 the appellant complainant through his Advocate sent demand notice to the accused calling upon him to pay Rs. 60,000/- i.e. the amount of the cheques within 15 days from the receipt of the notice. The accused received the notice on 19.11.97 but he did not make payment of the said amount and accordingly, the complainant lodged the complaint. The case was transferred to the Court of the learned Judicial Magistrate, 5th Court, Alipore for trial and the learned Magistrate by judgment and order dated 31.7.01 held that, it could not be proved that the cheques were issued by the accused and accordingly, the accused was found not guilty and was acquitted. Being aggrieved by and dissatisfied with the judgment and order of acquittal the complainant filed an application under section 378(4) of the Code for special leave to appeal and this Court granted special leave to appeal and accordingly, this appeal was instituted against the accused respondent.

(3.) Mrs. Dutta, learned Advocate for the appellant contended that the respondent is a promoter and the appellant has business of building materials. The respondent used to take building materials from the shop of the appellant on credit and in order to discharge his liability i.e. to make payment of the building materials he issued three A/c payee cheques in favour of the appellant. When the cheques were presented for encashment those were dishonoured with endorsement 'exceeds arrangement'. In spite of service of demand notice, the respondent did not make payment of the amount of the cheques, and accordingly, the complaint was filed against the respondent. The finding of the learned Magistrate that the accused clearly denied giving of three cheques to complainant is a finding based on surmise and conjecture and without appreciation of evidence. The cheques were presented in Court and were lying in the case record and it was duty of the learned Magistrate to mark the cheques as exhibit. Provisions of section 391 of the Code would apply in this case and this Court can direct taking of additional evidence. P.W. 2 Indrajit Das is the officer of the bank where the appellant maintains his account and in the said bank the cheques were presented for encashment which came back with return memo 'exceeds arrangement'. P.W. 4 is an officer of the UCO Bank, Tollygunj Branch in which the respondent maintained his account and the cheques were of that bank and the said cheques were sent to that bank for encashment but, the cheques were dishonoured and were returned with bank memo which is exhibit 3. There was no ground at all on the part of the learned Magistrate to disbelieve exhibit 3. Evidence of P.W. 4 reveals that as there was no sufficient fund the cheques were returned and for this reason they did not verify the signature of the respondent. The learned Magistrate arrived at a peculiar finding by observing that signature of the accused on the cheques were not proved and the said signatures were not tallied with the specimen signature of accused kept in his bank. The learned Magistrate did not realise that complainant was the holder of the cheques being presented to him by the respondent. The learned Magistrate did not apply his mind to the provisions of section 118 of the N.I. Act that complainant was the holder of the cheque and presumption would be that the cheques were given to him by the respondent accused in discharge of his liability.