9911796707
TMI Blog2023 (8) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst order dated 17.11.2017 passed by Learned Additional District and Sessions Judge Fast Track 1st Court Calcutta in Criminal Appeal Nos. 66 of 2017 and 67 of 2017 dismissing the appeals by affirming thereby the orders dated 15th December 2014 passed by the Learned Metropolitan Magistrate 12th Court Calcutta in Case No. C 1866 of 2010 and Case No. C 3897 of 2010 respectively u/s 138 of Negotiable Instrument Act thereby convicting the petitioner to suffer detention till rising of the court (TRC) and to pay compensation of Rs. 4, 00,000/- and Rs. 3, 00,000/- respectively to the complainant within one month in default to suffer simple imprisonment for two years. The brief fact of the case is that the present petitioner had business transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . During the continuation of the appeal one application u/s 391 of the Code of Criminal Procedure for adducing additional evidence was preferred by the present petitioner/accused. Learned Additional Sessions Judge heard the appeal along with the application and by passing the impugned order dated 17th November 2017 affirmed the order of the Learned Magistrate. Hence this revision. Learned Advocate for the petitioner submits that the Learned Judge, has failed to appreciate the facts and circumstances of this case and the impugned judgment is palpably improper and illegal in the eye of law. Learned Judge has failed to consider the fact that during the examination of the accused u/s 313 Cr.P.C. Petitioner specifically stated that he has alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trument Act, maximum punishments is two years as such in default the term of imprisonment shall not exceed 06 months. On that score, the impugned order passed by the Learned Additional Sessions Judge, is illegal and admittedly and non-application of mine. Thus, it is liable to be set aside. Learned Advocate for the opposite party No. 1 submitted before this court that the impugned order passed by the Learned Sessions Judge suffers no illegality. The Learned Sessions Judge, has considered the materials placed before him and passed the reasoned order. He also submitted before this court that the present opposite party is well reputed in dealing with travelling services from last 30 years. It gives services by arranging or providing Domesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is made after the cheque was drawn but before the cheque was encashed, such payment, held, must be endorsed on the cheque u/s 56 of the Act and the cheque cannot be presented for encashment without recording part-payment. Therefore, if the endorsed cheque is dishonoured on presentation, the offence u/s 138 of Negotiable Instrument Act would not attract since the cheque does not represent legally enforceable debt at the time of encashment. Learned Advocate for the appellant on that score submitted before this court that the petitioner has stated during the course of examination u/s 313 Cr.P.C. that he has move some part-payment to the opposite party and he possessed the receipts, but Learned Magistrate has not enquired into the matter, L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven by way of security and the same has been misused by the complainant. However, nothing is on record that in the reply to the statutory notice it was the case on behalf of the accused that the cheque was given by way of security. Be that as it may, however, it is required to be noted that earlier the accused issued cheques which came to be dishonoured on the ground of "insufficient funds' and thereafter a fresh consolidated cheque of Rs. 9,55,574 was given which has been returned unpaid on the ground of "STOP PAYMENT". Therefore, the cheque in question was issued for the second time. Therefore, once the accused has admitted the issuance of cheque which bears his signature, there is presumption that there exists a legally enforceable debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Learned Additional and Sessions Judge I have seen no infirmity in the said judgment. However, it is true that the impugned order of sentence passed by the Learned Magistrate on 05th December, 2014 specifically the term of sentence on default clause for non-payment of compensation is appears to me not justified. Section 30 of the Code of Criminal Procedure has enumerated the power of Learned Magistrate to award term of imprisonment in default of payment of fine. Sec- 30. Sentence of imprisonment in default of fine - -- (1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provided the term- (a) is not in excess of the powers of the Magistrate under Section 29; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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