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Tripura Real Estate Constructions Limited, Tripura & Others v/s Subal Chandra Das & Another

    Crl. Rev. P. No. 69 of 2019
    Decided On, 19 April 2022
    At, High Court of Tripura
    By, THE HONOURABLE MR. JUSTICE S.G. CHATTOPADHYAY
    For the Petitioners: H.K. Bhowmik, Advocate. For Respondents: D. Deb, S. Pal, Advocates, S. Debnath, Addl. P.P.


Judgment Text
1. By means of this criminal revision, petitioner has challenged the impugned judgment dated 28.08.2019 passed by the Additional Sessions Judge, Court No.4, Agartala in Criminal Appeal No.17 of 2018 affirming the judgment and order of conviction and sentence dated 18.09.2018 passed by the learned Additional Chief Judicial Magistrate, West Tripura, Agartala in case No.NI 132 of 2012 whereby each of the three accused were convicted under section 138 of the Negotiable Instruments Act, 1881 and sentenced to a fine of Rs.50,000/- with default stipulation.

[2] The factual context of the case is as under:

Subal Chandra Das lodged a complaint in the court of the Chief Judicial Magistrate at Agartala on 19th day of October, 2012 alleging, inter alia, that by way of publishing advertisement in a local daily, the accused company namely, Tripura Real Estate Constructions Limited offered land for sale at Agartala. Pursuant to the said advertisement, the complainant who was a Government employee at that time approached accused No.2 Bankim Chowdhury, Chief Managing Director of the accused company and entered into an unregistered agreement for purchasing a plot of land measuring 0308 acres at Agartala in plot No.324/2994 at Agartala Mouja recorded in Khatian No.940. Price of the land was settled at Rs.7,00,000/- and under the said agreement, complainant paid a sum of Rs.1,00,000/- in advance to accused No.2 Bankim Chowdhury. Accused No.2 assured on behalf of the accused company that a registered sale deed would be executed in favour of the complainant within 75 days. Even after the expiry of the period stipulated in the agreement, no sale deed was executed on behalf of the company in favour of the complainant. Rather, accused Bankim Chowdhury being the Chief Managing Director of the said company had issued a cheque vide cheque No.723424 dated 30.06.2012 of a sum of Rs.1,00,000/- in favour of the complainant towards refund of the advance taken from him. The said cheque was drawn on Indusind Bank at its Mantri Bari Road branch, Agartala. The cheque was signed by said Bankim Chowdhury, Chief Managing Director and Smt. Ratna Debnath who was the Accounts Director of the said real estate construction company. On 02.07.2012, the complainant presented the cheque at the Teliamura Branch of the United Bank of India where he had an account. From UBI, the cheque was sent to the IndusInd Bank for encashment. But it was returned to the bank of the complainant with an endorsement dated 07.07.2012 to the effect that the said cheque was dishonoured due to insufficiency of fund in the account of the accused company. Complainant informed accused Bankim Chowdhury about the dishonor of the cheque who assured that sufficient fund would be made available in the account of the company and asked the complainant to resubmit the cheque. Following such assurance, complainant again presented the cheque at his bank on 27.07.2012. The said cheque was again returned to his banker with an endorsement that it was dishonoured for insufficient fund in the account of the drawer of the cheque. Complainant then issued a demand notice to accused Bankim Chowdhury demanding refund of Rs.1,00,000/- within 15 days from the date of the receipt of the demand notice. The notice was sent to the accused by post registered with AD. Since, there was no response from the side of the accused, complainant lodged the complaint in the court of the Chief Judicial Magistrate impleading the company as accused No.1, its Chief Managing Director, Bankim Chowdhury as accused No.2 and the Accounts Director of the company Smt. Ratna Debnath as accused No.3.

[3] The complaint was received in the court of the Chief Judicial Magistrate on 19.10.2012 and after examination of the complainant under section 200 Cr.P.C, cognizance of offence was taken and complainant was asked to take steps for issuing summons to the three accused. Since the complainant defaulted in filing requisites before the Court for issuing summons to the accused persons, by an order dated 29.01.2014, the learned Additional Chief Judicial Magistrate dismissed the complaint. Complainant challenged the said order of dismissal of the complaint in the High Court by filing Crl. Rev. P. No.04 of 2015. This Court, by order dated 01.06.2015 in Crl. Rev. P. No.04 of 2015 set aside the order of the Additional Chief Judicial Magistrate dated 29.01.2014 imposing cost of Rs.5,000/- to the complainant and directed that the costs so imposed would be awarded to the respondents on realization. Counsel appearing for the respondents in the High Court assured that the respondents would appear before the trial court on the next listed date and the issuance of summons to the respondents from the trial court was waived by the counsel of the respondents.

[4] The trial court proceeded with the trial of the case. The substance of accusations were read over and explained to the accused persons in terms of section 251 Cr.P.C. They pleaded not guilty and desired to stand the trial.

[5] In the course of the trial, complainant examined himself as PW-1, one Arun Kr. Roy who also entered into similar agreement with the accused real estate company for purchasing a plot from them was examined as PW-2 and Pradip Majumder, a colleague of the complainant was examined as PW-3. This apart, complainant adduced the impugned cheque dated 30.06.2012 [Exbt.1], letter of the bank conveying that the cheque was dishonoured [Exbt.2], Memo whereby the cheque was returned [Exbt.3], letters of the Director of Postal Services [Exbt.4 and 5], postal receipt [Exbt.6] and some letters of accused real estate company [Exbt.7] were taken into evidence and marked as exhibits on the side of the complainant.

[6] Accused Bankim Chowdhury got himself examined as DW-1 and accused Ratna Debnath got herself examined as DW-2. No documentary evidence were adduced on behalf of the accused persons.

[7] After the evidence was recorded, accused were examined under section 313 Cr.P.C separately. The trial court explained to them the incriminating circumstances which appeared against them from the prosecution evidence. Accused Bankim Chowdhury admitted that the agreement was signed by the accused real estate company agreeing to sell a plot of land to the complainant within 75 days of signing the agreement. About the fact that the cheque issued by him was dishonoured by the bank after its presentation, accused denied the fact. Accused admitted the fact that complainant paid Rs.1,00,000/- in advance after the agreement was signed between him and the accused real estate company. Accused stated that the impugned cheque was collected by the complainant from him forcibly. He pleaded that he was innocent and the charge was foisted on him.

[8] Ratna Debnath, another accused gave almost the same reply during her examination under section 313 Cr.P.C. She also admitted the execution of the agreement between the complainant and her company and she also admitted the fact that complainant paid Rs.1,00,000/- in advance for purchasing a plot of land from their company. In same tune with accused Bankim Chowdhury, she pleaded that impugned cheque was obtained from them by the complainant by force. She stated that she was innocent and the complainant falsely implicated her in the case.

[9] On appreciation of evidence, the trial court held that complainant successfully established the essentials of section 138 NI Act. Accused being the drawer of the cheque on the other hand could not discharge the presumption under section 139 NI Act by adducing evidence. Learned trial court, therefore, held all the three accused guilty of offence punishable under section 138 NI Act and after their conviction, sentenced each of them as under:

“36. As a result the accused namely Tripura Real Estate Constructions Limited, Sri Bankim Chowdhury and Smt. Ratna Debnath are convicted of the offence U/S 138 of the Negotiable Instruments Act, 1881 read with section 141 of NI Act, 1881 and they are sentenced as follows :

37. The accused No.1 i.e. Tripura Real Estate Constructions Limited is sentenced to pay a fine of Rs. 50,000/(Rupees fifty thousand)only U/S 138 of NI Act, 1881 read with section 141 of NI Act, 1881 and in default of payment of fine by accused No.1 which is a corporate entity its representatives namely accused No. 2 Sri Bankim Chowdhury and accused No. 3 Smt. Ratna Debnath shall suffer simple imprisonment for 15(fifteen) days each.

38. The accused No.2 i.e. Sri Bankim Chowdhury is sentenced to pay a fine of Rs. 50,000/(Rupees fifty thousand)only U/S 138 of NI Act, 1881 read with section 141 of NI Act, 1881 and in default of payment of fine he shall suffer further Simple Imprisonment for a period of 15(fifteen) days.

39. The accused No.3 i.e. Smt. Ratna Debnath is sentenced to pay a fine of Rs. 50,000/(Rupees fifty thousand)only U/S 138 of NI Act, 1881 read with section 141 of NI Act, 1881 and in default of payment of fine she shall suffer further Simple Imprisonment for a period of 15(fifteen) days.”

[10] Aggrieved by the judgment and order of their conviction and sentence, the accused persons filed an appeal against the said judgment before the learned Sessions Judge, West Tripura, Agartala under section 374 of the Cr.P.C, 1973. The said appeal was heard by the learned Additional Sessions Judge (Court No.4) and by his judgment dated 28.08.2019 passed in Criminal Appeal No.17 of 2018, the learned Additional Sessions Judge held that the judgment and order of conviction and sentence passed by the trial court suffered from no infirmity and the said judgment did not call for any interference in appeal. Learned Additional Sessions Judge, therefore, dismissed the appeal affirming the conviction and sentence of the petitioners and directed them to pay the fine by appearing before the trial Court.

[11] Heard Mr. H.K. Bhowmik, learned counsel appearing for the petitioner and Mr. D. Deb, learned counsel appearing along with Mr. S. Pal, advocate for respondent No.1. Mr. S. Debnath, learned Addl. P.P represents the State respondent. [12] Counsel appearing for the accused petitioners contends that service of demand notice is a sine qua non for prosecution under section 138 NI Act. But the learned Additional Sessions Judge did not consider the defence argument that no demand notice was served on accused Ratna Debnath before filing the complaint. Counsel submits that the amount of advance paid by the original complainant was actually forfeited due to his failure to abide by the terms of the contract. It was contended by Mr. Bhowmik, learned counsel that for redressal of his grievances, the complainant should have filed a civil suit in the competent court instead of prosecuting the accused persons under section 138 NI Act. Counsel contends that PW-2 who supported the case of the complainant was an interested witness because he also brought same allegations against the accused persons and as such he was interested in their prosecution and punishment. Counsel has argued that the accused persons have been falsely implicated in the present case and the impugned judgment should be set aside.

[13] Mr. D. Deb, learned advocate while opposing the contentions of Mr. H.K. Bhowmik, counsel of the petitioners has submitted that the accused persons have admitted the execution of the contract and they have also admitted that they received Rs.1,00,000/- on behalf of accused real estate company from the complainant as an advance for selling out a plot of land measuring one and half ganda. Therefore, they had an existing debt to the complaint for which they issued the impugned cheque and complainant by adducing sufficient evidence established before the trial court that despite presentation of the cheque at the bank more than once, the cheque was dishonoured for non availability of fund in the account of the accused. Counsel contends that presumption under section 139 NI Act arose against accused persons in the given facts and circumstances of the case and the accused persons could not discharge the presumption by adducing sufficient evidence. Therefore, the learned trial court held them guilty and convicted and sentenced them. It has been argued by the counsel that there is no error in the judgment of the trial court which was rightly upheld by the learned Additional Sessions Judge. Counsel of the respondent complainant, therefore, urges for affirming the impugned judgment by dismissing the present petition.

[14] With regard to the burden of the accused in discharging the presumption under section 139 NI Act, counsel has relied on the judgment of the Gauhati High Court in Manik Lodh vs. State of Assam & Anr. reported in (2008) 1 GLR 804 wherein the Gauhati High Court has held that where a person holds a cheque it is obligatory for the court to draw a presumption under section 139 NI Act that the holder of the cheque has received it for discharge, in whole or in part of a debt or other liability and once such presumption is raised, burden shifts to the accused to prove that the drawee did not hold the cheque in discharge of debt or liability of the drawer. The Gauhati High Court held that such presumption has to be rebutted by proof and not by mere explanation, howsoever plausible such an explanation may be. Counsel has relied on paragraph 20 of the judgment which reads as under:

“20. To sum up, when a person holds a cheque, section 139 makes it, as already indicted above, obligatory for the Court to presume that the holder of the cheque has received the cheque for discharge, in whole or in part, of a debt or other liability. Once such presumption is raised, the burden shifts to the accused to prove that the drawee did not hold the cheque in discharge of debt or liability of the drawer. When a presumption of fact is raised, the liability of the accused is treated to have been discharged if the explanation offered by the accused is reasonable or probable. But in the case of presumption of law, the accused has the onus of showing not only that his explanation is reasonable and probable, but also that his explanation is a true one. The expression unless the contrary is proved, which occur in section 139, makes it clear that the presumption has to be rebutted by proof and not by a mere explanation, howsoever plausible such an explanation may be. A fact is said to be proved, I may recall, when its existence is directly established, or when, based on the materials placed before it, the court finds its existence to be so probable that a reasonable man ought to act on the supposition that it exists.”

[15] Admittedly, accused Bankim Chowdhury was the Chief Managing Director and accused Ratna Debnath was the Accounts Director of Tripura Real Estate Constructions Limited, a company registered under the Companies Act, 1956. By appearing before the court as DW-1 and DW-2 respectively, they have asserted that their company came out with an advertisement published in a leading daily namely, Dainik Sambad whereunder the company offered sale of land in plots at various places at Agartala and in response to the said advertisement, complainant agreed to purchase a land and paid a sum of Rs.1,00,000/- as advance after executing a written agreement with the company. It is also stated by the said two accused that as the Managing Director and the Accounts Director of the company, they were authorized to operate the accounts of the company.

[16] They have not even specifically denied their signatures on the cheque (Exbt.1). The return memo issued from the United Bank of India, the banker of the complainant respondent No.1 whereby the cheque was returned to IndusInd bank for insufficient funds in the accounts of the petitioners has also been proved as Exbt.2. It is no case of the convict appellants that they have returned the advance taken from the complainant respondent by any other means. Admittedly, despite execution of written agreement between the parties and receipt of advance by the appellants, no land was transferred to the complainant respondent in terms of such agreement. DW-2 Ratna Debnath who is one of the convict appellants has categorically stated in her cross examination that due to internal problems of Tripura Real Estate Constructions Limited (convict appellant No.1), the agreement for sale of land to the complainant respondent could not be materialised. She did not attribute any fault to the complainant respondent for non execution of the said agreement.

[17] Situated, thus, presumption under section 139 of the NI Act arises against the convict appellants. Obviously, the convict appellants could not raise a probable defence to create doubts with regard to the existence of such debt or liability. Rather, it is the admitted position of the case that Rs.1,00,000/- was received by the appellants as advance from the complainant respondent for transfer of land in his favour for a price of Rs.7,00,000/- in terms of the agreement executed between the parties. It has also been admitted that neither any land was transferred to the complainant respondent nor the advance was refunded to him and as stated, DW-2 in her cross examination, has attributed the liability to convict appellant No.1 for non implementation of the terms of the agreement. In her cross examination she asserted as under:

“I know one agreement was made with Sri Bankim Chowdhury by the complainant of NI 131 of 2012 and the complainant of NI 132 of 2012. Two separate agreement was made. As per the agreement amount of Rs. 1 lakh was paid by both the complainant. Subsequently, due to some internal cause of Tripura Real Estate Construction Ltd the agreement were not materialized.”

[18] The main ground of attack to the prosecution case is that even though appellants No.2 and 3 were signatories of the impugned cheque, no demand notice was issued to convict appellant No.2 Ratna Debnath. With regard to service of notice, the appellant No.2 Bankim Chowdhury in his examination in chief had asserted that though his notice was addressed to his address, the notice was not served on him. But in his cross examination, he has categorically stated that despite receiving the notice he did not give any reply to the complainant respondent. He made the following statement before the court in his cross examination:

“It is a fact that I have received the demand notice from the complainant U/S 138 of NI Act. It is a fact that after receiving the notice I have not given any reply either to Sri Arun Kr. Roy or Sri Subal Ch. Das.”

[19] Therefore, the contention that the appellant No.2 did not receive any demand notice does not gain ground. Now the question which falls for consideration is whether prosecution of convict appellant No.2 Ratna Debnath was lawful without service of demand notice on him. In the complaint filed under section 138 NI Act, complainant has impleaded Tripura Real Estate Constructions Limited as accused No.1 and its Chief Managing Director Bankim Chowdhury as accused No.2 and Accounts Director Ratna Debnath as accused No.3. In their defence, DWs have admitted that as Chief Managing Director and Accounts Director, they were authorized to operate the accounts of the company. Admittedly, as officers of the appellant company they were aware of the fact that advance of Rs.1,00,000/- was received from the respondent for sale of land to him and the company had an enforceable debt to the complainant as per the terms of agreement. No land was transferred to him nor the advance was refunded to him. In these circumstances, the liability on account of dishonour of the impugned cheque primarily falls on the drawer company which is a corporate liability and convict appellants No.2 and 3 as the officers of the company are vicariously liable for such offence, the principal accused is the company. In these circumstances, service of demand notice on the Chief Managing Director of the accused company is sufficient. Accused appellant No.2 Ratna Debnath who is the Accounts Director of the company cannot escape her liability by saying that no demand notice was issued to her.

[20] Having appreciated the materials available on record and the submissions of counsel representing the parties and having examined the case in the light of the judgment cited to supra, this court is of the view that insofar as the conviction of the appellants under section 138 NI Act is concerned, there is no ground to interfere with their conviction. Resultantly, their conviction affirmed by the Additional Sessions J

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udge in Criminal Appeal No.17 of 2018 is upheld. [21] Insofar as imposition of sentence is concerned, it appears that the trial court sentenced each of the three convicts including the company to a fine of Rs.50,000/- and in default to simple imprisonment for 15 days. The learned trial Judge besides awarding separate default sentence to convict appellant Bankim Chowdhury and convict appellant Ratna Debnath also ordered that the default sentence of the company would also be suffered by Bankim Chowdhury and Ratna Debnath as representatives of the company. Learned trial Judge committed an error by awarding default sentence to the company as the company cannot be sentenced to imprisonment. Moreover, each of the other two convict appellants were awarded fine and default sentence separately. Therefore, it was not correct to impose the default sentence of the company on them. To that extent, the sentence awarded to the company is modified. [22] Resultantly, the impugned judgment passed by the learned Additional Sessions Judge in Criminal Appeal No.17 of 2018 stands affirmed subject to the above modification of the sentence awarded to the company (convict appellant No.1). The company shall pay a fine of Rs.50,000/- to complainant respondent No.1. Convict appellant No.2 Bankim Chowdhury shall pay Rs.50,000/- and convict appellant No.3 Ratna Debnath shall also pay fine of Rs.50,000/- to the claimant respondent and in default Bankim Chowdhury and Ratna Debnath shall suffer SI for a term of 15 days. [23] In terms of the above, the criminal revision petition is disposed of. [24] The convict appellants are directed to deposit the fine at the trial court (the Additional Chief Judicial Magistrate, West Tripura, Agartala) within a period of one month from today failing which the trial court shall issue appropriate process in accordance with law to compel the appearance of convict appellant Bankim Chowdhury and Ratna Debnath and commit them to prison to suffer the default sentence and the fine awarded to the company, if not deposited, shall be realized from the estate of the company. Fine on realization be paid in whole to respondent Sri Subal Chandra Das. [25] Send down the LCR. Pending application(s), if any, shall also stand disposed of.
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