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TMI Blog2016 (11) TMI 1706X X X X Extracts X X X X X X X X Extracts X X X X ..... t a point either before the Trial Court or before the First Appellate Court. Appeal allowed - decided in favor of appellant. - C.R.A. No. 625 of 2007 - - - Dated:- 23-11-2016 - INDRAJIT CHATTERJEE, J. For the Appellant : Somopriyo Chowdhury and Sourav Bhagat For the Respondent : Sabyasachi Banerjee and Anirban Dutta JUDGMENT Indrajit Chatterjee, J. 1. This Court is hearing this appeal as against the judgment and order dated 28.8.2007 passed by the learned Additional Sessions Judge, Barrackpore, North 24-Parganas, in Criminal Appeal No. 2 of 2007 vide which the order of conviction as passed by the learned Judicial Magistrate, 5th Court, Barrackpore, North 24-Parganas, on 26.4.2007 as passed in Complaint Case No. 583 of 2003 was reversed from an order of conviction to an order of acquittal. 2. It may be mentioned that the learned Trial Court vide the impugned judgment convicted the present accused/respondent in respect of the charge punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter called as the Act of 1881) and sentenced him to suffer rigorous imprisonment for one year and directed to pay fine of ₹ 2,60,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposed that the instructed the bank to make stop payment from his account even though he built up a story as witness that the said cheque book was lost and he lodged one G.D. Entry before the Naihati G.R.P.S., being G.D. Entry No. 988 dated 25.7.2003, and the said G.D. Entry was produced by the D.W., 2 which was marked as Exbt.-A. In 313, Cr.P.C., the accused/opposite party stood to his claim that no such cheque was issued to the complainant. When the complainant (P.W. 1) was being examined it was suggested by the defence that the cheque leaf in question was taken by the complainant under influence of liquor and it was also suggested that the execution of the agreement Exhibit-1 was under influence of liquor and the parties used to consume liquor together. 5. It may also be noted that on behalf of the present appellant/complainant one employee of UCO Bank of Kanchrapara Branch was examined as P.W. 2 who specifically deposed that this accused being one customer of that branch, the signature of the accused was known to him and he duly identified the said signature of the opposite party/accused. This witness also deposed that the said cheque was dishonoured on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court also took similar view and proceeded to say that burden is entirely on the drawer of the cheque to establish the date, amount and payees name written by somebody else without his knowledge and consent and the drawer did not discharge that burden. 9. Learned Counsel further submitted that the learned First Appellate Court duly relied on the decision of the Apex Court 2004 C.Cr.L.R. 113 (SC), that presumption of a cheque under section 139 of the Act stands in favour of the instrument being duly drawn by the drawer unless cogent evidence is adduced to rebut the presumption. He took me to the agreement for sale marked as Exbt. 1 before the learned Trial Court to convince this Court that the cheque was issued to meet up the existing liability and that earnest money of ₹ 1,00,000/- was paid on the date of the agreement. On my asking the learned Counsel submitted that the rate of interest was not mentioned in the agreement. 10. He further submitted that even though D.W. 1 deposed that he instructed the bank to make stop payment but no document was produced to establish his claim and that P.W. 2 who came to depose on behalf of the United Commercial Bank that is the banker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the floor of the Apex Court cannot match with the present case before this Court as from paragraph No. 13 of the judgment it will be evident that the dispute between the parties was regarding presentation of a cheque not on the stipulated date. The fact before this Court is totally different from the fact before the Apex Court. 15. The argument Mr. Banerjee that six months' stipulated time was not given to the accused/opposite party to fulfill the contract is belied by the fact that the cheque was issued on 22.7.2003 and that it was presented to the banker of the complainant only on 1.9.2003 and this shows that there must be some internal agreement between the parties not to place the cheque earlier and as such the agreement dated 13th of Chaitra, 2009 BS was abandoned earlier by the parties. (This Court is not unmindful of the decision of this Court as in Nita Kanoi @ Bansal v. M/s. Paridhi and another (2015) 1 CAL LT 626. I have taken into consideration the agreement advanced by the parties wherein a co-ordinate Bench took up a similar matter where the signature in the cheque was not disputed by the drawer of the cheque but he claimed that the name of the payee and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he drawer accused but he did not fill in the body of the cheque. The learned First Appellate Court even made necessary comparison of the writing of the cheque with the signature of the complainant and on close scrutiny it came to the conclusion by taking recourse to the word Sujit that the cheque was filled in by the complainant himself. The said Court however while doing so noted in the judgment that the signature of the appellant in the cheque is there in Bengali but unfortunately the signature appearing on the cheque is in English. This comparison of the writing of the cheque is in violation of the judgment passed in Nita Kanoi @ Bansal (supra) wherein as I have stated earlier the Court held that there was no need for verification of the handwriting by which the name of the payee and the amount has been filled up. When the First Appellate Court held that the signature on the cheque was of the accused he had no authority to compare the handwriting of the body of the cheque. 19. The Apex Court also has time and again directed that the Court should not usurp the role of a hand writing expert even though it is said that Court is expert of all experts and such duty must be left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque as per the complainant was issued as advance for the consideration money. 22. Be that as it may, the Court should not lose sight of the oral evidence of P.W. 1, that is the complainant/appellant, who candidly deposed that he entered into one agreement of sale with the opposite party and ₹ 4,00,000/- was fixed as consideration money and out of that ₹ 1,00,000/- was paid to the accused opposite party at the time of the execution of that agreement but somehow that agreement lapsed and as per P.W. 1 the disputed cheque was issued by the accused opposite party on the date of the agreement as advance. The accused only denied the entire story and even did not say on oath as D.W. 1 that he did not put any signature on the said cheque exhibit 2. 23. Now, the question comes whether the cheque was rightly issued or not. This Court is not unmindful of the fact that the cheque is dated 22.7.2003 and it was presented on 1.9.2003 and that must be as per mutual understanding. The G.D. entry was lodged on 25.7.2003 at 10.20 hours. The question now is whether the filing of the GD entry (Exbt. A) to the effect that when this accused/opposite party was travelling in a tram he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Kanoi @ Bansal (supra). This Court is not willing to answer the point as to whether the interest or damages claimed was usurious as it was not a point either before the Trial Court or before the First Appellate Court. 26. In such circumstances the order of the First Appellate Court is set aside. The appeal stands allowed. The finding of guilt of the Trial Court is restored. But, as regards the substantive sentence imposed by the learned Trial Court this Court is of the opinion that the substantive sentence of one year rigorous imprisonment is too much and it is reduced to rigorous imprisonment for three months. 27. The fine amount of ₹ 2,60,000/- (two lakh sixty thousand) be converted as compensation under section 357(3) of the Code of Criminal Procedure, 1973 and in default of such payment the opposite party accused must serve rigorous imprisonment for one year. 28. The accused opposite party is directed to make such payment of ₹ 2,60,000/- (two lakh sixty thousand) by way of Demand Draft in the name of the appellant before the learned Trial Court within one month from this day and must surrender before the learned Trial Court to serve out the substantive se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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