Criminal Appeal No. 06/55 of 2006 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.366 of 2022 Rajendra Kumar Tripathy …. Petitioner(s) -versus- Umesh Chandra Routray …. Opposite Party(s) Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Mr. S. Kanungo, Adv. Mr. T. Panigrahi, Adv. CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-09.11.2023 DATE OF JUDGMENT: -22.12.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner through this Petition has challenged the judgment dated 22.06.2022 passed in Criminal Appeal No. 06/55 of 2006/2005 by
Legal Reasoning
the Court of Learned 1st Addl. Sessions Judge, Puri confirming the judgment dated 30.06.2005 in ICC No. 183/1997 (T.R.) 1279/ 2003 passed by Learned JMFC, Puri. I. FACTUAL MATRIX OF THE CASE: 2. The brief fact leading to filing of the revision petition is that the opp. Signature Not Verified party filed a complaint case alleging offence under Section 138 of Page 1 of 9 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 02-Feb-2024 16:12:18 Negotiable Instrument Act, 1881 (hereinafter referred as NI Act). As per the allegations, the complainant had supplied certain raw materials necessary for construction of roads as per the request of the accused who was a special class contractor. The accused gave three cheques in favour of the complainant towards the price of the materials supplied. The complainant thereafter bank presented these cheques in his bank for encashment. 3. The cheques were returned being dishonoured by the drawee bank due to insufficiency of funds in the account of the drawer-accused following which the complainant sent regd. notice on 18.11.1997. However, the accused did not comply for payment. The claim raised by the complainant is sought to be based upon three cheques bearing No. JAN/S 006988, JAN/S006989 dated 01.05.1997 and 02.05.1997 respectively and the third cheque bearing No. JAN/ S006990 dated 13.05.1997. Allegations concerning all the three cheques being almost identical, the complainant instituted separate complaint cases vide ICC No. 103/1997 with respect to first two cheques and another ICC No. 183/1997 with respect to the last cheque. While ICC No. 103/1997 has led to acquittal of the accused vide judgment dated 20.09.2006, the ICC No. 183/1997 concerning the present appeal has led to conviction. 4. The accused while denying all the allegations, argued that a car bearing Regd. No. OR-X-8986 was purchased from OIIDC in the name of complainant though the accused was interested to buy the same. Later on, the complainant agreed to sell the vehicle in question to the accused and accordingly sent over the car to the accused who by Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 02-Feb-2024 16:12:18 Page 2 of 9 incurring huge expenditure got it repaired. The parties further reached at an agreement that as soon as the complainant changes the ownership of the car, the accused would pay him Rs. 1,50,000/-. However, despite the fact that the accused time and again approached the complainant for change of ownership, the latter for reasons, best known to him, turned a deaf ear to the request. Finally, a compromise was reached, in presence of the gentries, that after the change of ownership of the vehicle, the accused would pay the aforesaid money but first the accused shall issue cheques in favour of the complainant with an understanding that those cheques shall not be presented in bank for encashment but shall be retained as security. 5. Pursuant to such an agreement arrived at between the parties, the accused handed over the cheques to the complainant. The complainant submitted an undertaking that the cheques shall not be presented in the bank for encashment. Thereafter, the complainant avoided taking steps for change of ownership which led to souring of relationship between the parties and the complainant initiated the criminal prosecution making false, vexatious and wild allegations. 6. In course of trial of the complainant case, the complainant in an attempt to bring home the accusations against the accused examined five witnesses, he himself, figuring as P.W.1, got certain documents admitted in evidence. From the side of the defence, two witnesses were examined with documents brought in evidence. It may not be out of place to indicate here that, advancing the very same allegations as in the present criminal proceeding, the complainant being the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 02-Feb-2024 16:12:18 Page 3 of 9 plaintiff instituted a money suit bearing MS No. 34 of 2000 in this suit of the Civil Judge (SD) Puri against the accused arrayed as the sole defendant in the suit, claiming realization of Rs. 1,77,000/- along with pendent lite and future interest. 7. Vide judgment and decree respectively dated 22.11.2003 and 10.12.2003, the suit was decreed challenging which the defendant has preferred an appeal before the High Court of Orissa registered as RFA No. 30 of 2004. Said appeal is now pending in the High Court. The present petitioner has deposited an amount of Rs.1,03,335/- before the Ld. Civil Court in Execution Case No-09/2000 arising out of the civil suit on 18.01.2005 as per the order of the High Court dated. 20.12.2004 in Misc Case No-342/2004 arising out of the said RFA No-30/2004. 8. After hearing the parties, the trial court found the accused guilty and accordingly convicted him with a sentence of fine of Rs. 5,000/- and in default to undergo simple imprisonment for 4 months. The trial court separately awarded compensation of Rs. 1,00,000/- (Rupees One Lakh) to be paid by the accused to the complainant under Section 357 of CrPC. 9. The complainant thereafter made a revision in Crl. Rev. No. 06/26/2008/2007 before the 1st Addl. Sessions Judge, Puri under Section 397 of CrPC on the ground that the imposition of fine with other compensation is erroneous and the same is likely to frustrate the payment of compensation as the same was not permissible under Section 357 of Cr. PC. The Learned 1st Addl. Sessions Judge, Puri while exercising the power of revision allowed the application in part Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 02-Feb-2024 16:12:18 Page 4 of 9 thereby setting aside the judgment dated 30.06.2005 passed by Learned JMFC, Puri and remitted the matter to the Learned JMFC with a direction to modify the order dated 30.06.2005 to direct the accused to give compensation of Rs. 1,00,000/- to the complainant, in default to undergo SI for 4 months. However, the fine of Rs. 5,000/- was directed to be excluded from the sentence. 10. The accused on the other hand also filed a revision petition in Criminal Revision No. 79/2005 challenging the judgment passed in ICC No. 183/1997 by the Learned JMFC, Puri. At the same time, the petitioner also preferred an appeal under Section 374 of Cr. PC in Criminal Appeal No. 06/55/2006/ 2005 challenging the said judgment. The Learned 1st Addl. Sessions Judge, Puri decided the appeal first and dismissed the appeal by confirming the order of the learned trial court vide judgment dated 22.06.2022. Criminal Revision No. 79/2005 was subsequently which disposed of as infructuous on 22.06.2022 after the impugned judgment in Criminal Appeal No. 06/55 of 2006/2005 was pronounced. II. PETITIONER’S SUBMISSIONS: 11. Learned counsel for the Petitioner(s) earnestly made the following submissions in support of his contentions: 12. In a prosecution under the provisions of Negotiable Instrument Act, the nature and standard of proof necessary to bring home an indictment against an accused-drawer of a cheque casts an onerous responsibility on the prosecution akin to any criminal trial: to Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 02-Feb-2024 16:12:18 Page 5 of 9 establish its case to the utmost satisfaction of the court and ‘beyond reasonable doubt’. 13. There is ample and convincing evidence, both oral and documentary, adduced by the present petitioner to show that the cheque was handed over to the complainant under a separate state of affairs but not for the purpose of claim by the latter. Ergo, the Magistrate committed a mistake in not appreciating the evidence in proper manner. 14. Had both the learned courts correctly appreciated the evidence led by the parties in the light of various legal provisions governing the field, they would have arrived at a finding that the ingredients of the alleged offence are not made out and besides that, the prosecution has failed to establish the allegations against the accused for which the criminal liability can be fastened on him. 15. The allegations made by the complainant concerning factual aspects in ICC No. 103/1997 and ICC No. 183/1997 being almost identical and having been committed within a span of one year and the former case having led to acquittal of the accused, the accused in the latter case ought to have been acquitted. The procedural error which occurred in course of trial of the case and the defective manner in which the statement of the accused-petitioner has been recorded under Section 313 CrPC has prejudiced the case of the accused. 16. The direction with regard to payment of compensation as independent relief to the complainant is beyond the scope of provisions enumerated in Section 357 CrPC in as much as reading of Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 02-Feb-2024 16:12:18 Page 6 of 9 the said section couched in a plain and unambiguous language makes it seemingly clear that, once the court, after convicted an accused, imposes a fine or awards a punishment of which fine forms a part; it can order the whole or any portion of the fine recovered to be applied towards the purpose mentioned in the said section but in such an event, the court is not clothed with any power to pass a separate order of compensation, which has happened in this case. 17. The accused having not being sentenced under any category of punishment under Section 53 of the IPC, 1860; the order directing compensation without any operation of sentence is faulty one and hence liable to be set aside. III. COURT’S REASONING AND ANALYSIS: 18. The claim of the petitioner is that the cheque in question was not issued for any legal liability or debt rather it was issued in form of security. As already discussed above, it is claimed that for purchase of a car the petitioner has given three cheques to the complainant with an agreement to return the said cheque after payment of consideration. To that effect the petitioner has referred one letter pad of the complainant wherein it has been mentioned that three cheques, including the cheque in question was issued by the petitioner in favour of the complainant. 19. It has been specifically mentioned that after transfer of the ownership of the car, the complainant will return the three cheques to the petitioner. It is further mentioned that the complainant will not Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 02-Feb-2024 16:12:18 Page 7 of 9 deposit the cheque in the Bank and shall be kept for the purpose as above in term of security. 20. Without going in detail, if the said document is accepted to be true, it is just a document executed for collateral purpose. The said paper cannot be termed as an agreement. That apart, if the claim of the petitioner is accepted, he has handed over three cheques to the complainant as security. D.W.1 is a witness to the said understanding and he has admitted to the above mentioned understanding. D.W.2, Rabindra Kumar Biswal, who is said to be the scribe of the document has admitted that he has not put any endorsement on it. Even if it is accepted that such an agreement on the letter pad of the complainant is incorporated, the same being not a valid document is not binding on the parties. 21. In the original application under Section 138 of the N.I. Act, the complainant in the application has stated that he is a supplier of roads and building materials. The petitioner/accused being a contractor had undertaken construction works of roads at different places of Puri district. On the request of the petitioner, the complainant supplied him road work materials and the petitioner for payment of the dues had served the cheques amounting to Rs.50,000/- to the complainant. 22. The complainant examined himself as P.W.1, and supported the said claim and he was also thoroughly cross examined. In the cross examination he has admitted that no document is available with him to show that he has supplied road materials to the accused. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 02-Feb-2024 16:12:18 Page 8 of 9 Admittedly, both the petitioner and complainant are contractors. It is the admitted case of both the parties. 23. According to the evidence of D.W.1, both the parties to this litigation, apart from being contractors, also own trucks. Both the parties being contractors having good relationship with each other prior to this dispute, supplying of raw materials for construction work by the complainant to the petitioner or vice versa cannot be disbelieved. In such facts and circumstances, it is not binding on the complainant to prove that he is dealing with supply of raw materials. If the document is completely a private document, it is the duty of the party, who relied on the same, to prove its genuineness. So far as the document vide Ext-A is concerned, unless an agreement to sale is proved with cogent, concrete and reliable evidence, it is not enforceable or having any substance to stand itself to defuse the entire claim of the complainant which impressed to be more valuable than the evidence adduced by the petitioner. 24. With respect to the aforesaid discussion, the judgment and order passed by the learned trial Court in ICC No.183 of 1997 does not suffer from any infirmity and needs no interference. However, the Petitioner is free to explore other remedies.
Decision
25. Accordingly, this CRLREV is disposed of. Orissa High Court, Cuttack, Dated the 22nd Dec., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 02-Feb-2024 16:12:18 (Dr. S.K. Panigrahi) Judge Page 9 of 9