CRIMINAL REVISIONAL JURISDICTION v. Arup Kumar Palodhi

2. By the said Judgment and order, the Learned Judge affirmed the judgement and order dated 25.05.2015 passed by the Learned Judicial Magistrate, 5th Court, Paschim Medinipur in C.R. Case No. 604/2012 filed under Section 138 of the Negotiable Instrument Act, 1881 (In short N.I. Act) whereby and whereunder the petitioner herein was convicted for an offence punishable under Section 138 of the NI Act and sentencing him to suffer imprisonment of three months and pay a fine of Rs. 5,25,000/- out of which Rs. 5,00,000/= shall be paid to the complainant as compensation. In default of payment of the fine amount, Rs. 25,000/-, the petitioner will undergo a further imprisonment of one-fourth of the simple imprisonment. FACTS OF THE CASE

3. Brief facts of the present case in hand, relevant for the purpose of disposal of this case are as follows: 3 a. It was the specific allegation of the complainant that the present petitioner was his friend and, due to an urgent need for money for his business, requested him to lend to the petitioner a sum of Rs. 5,00,000/-, as a temporary loan for his business, with an undertaking to repay the same within the first week of June, 2012. He had handed over a post-dated cheque of Rs. 5,00,000/- dated

10.06.2012, a Sale deed, and an insurance policy paper to the complainant. However, when the said cheque was presented to the bank, it was dishonoured due to insufficient funds. b. The complainant filed a case under section 138 of the N.I. Act when the Petitioner failed to repay the aforesaid amount, and finally the case was disposed of by the Trial court after conclusion of trial, wherein the Trial Court convicted the petitioner and sentenced him as aforesaid. c. The contention of the present petitioner, whereas, is completely different. Actually, the petitioner was in dire need of money for his business. Consequently, he approached the complainant, who is also a businessman, and had very good relations with several banks. He assured the Petitioner that he would arrange for a loan from one of the banks. d. Upon such assurance and good faith, the petitioner had handed over a blank cheque, a deed of an immovable property, mutation 4 certificate, the record of rights, and LIC policy papers as mortgage to secure a loan from the bank, but the complainant misused the same after betraying the trust of the petitioner. e. The Learned Trial court did not follow the proper procedure while disposing of the proceeding, and convicted the petitioner under Section 138 of the N.I. Act, whimsically and capriciously, and further sentenced him, even though the case of the petitioner was different. f. The Trial court has also not properly examined the petitioner under section 313 of the CrPC. No opportunity of cross-examination of the P.W.2 was allowed by the successor Magistrate despite the indication that P.W.2 was never cross-examined. Therefore, the Petitioner has lost his valuable right to cross-examine the witness on the factual aspect and finally suffered conviction without any fault. g. Being aggrieved by and dissatisfied with the impugned judgment and order dated 25.05.2015 passed by the Trial court, the petitioner preferred an appeal before the Appellate court but the same was also dismissed without considering the case of the petitioner though it is trite law that statute should be followed strictly and any deviation in the proceeding, as has been done in the instant case, calls for a de novo trial for the proper and just 5 decision of this case. Hence, the Petitioner filed this application before this Court by way of Criminal Revisional application praying for setting aside the aforesaid impugned judgment and order to secure the ends of justice. SUBMISSIONS ON BEHALF OF THE PETITIONER:

4. Learned counsel appearing on behalf of the petitioner/accused submitted that whatever complaint was made by complainant/opposite party under Section 138 of the Negotiable Instruments Act, 1881, is not at all attracted in the instant criminal proceeding. It is not at all maintainable in the eyes of the law because there was no such transaction or grant of loan or advance to the petitioner. Actually, the case is completely different as the petitioner was allegedly in dire need of money for his business purpose and approached the complainant, who is also a businessman, and had very good relations with several banks. He assured to provide a loan to the Petitioner from the bank concerned.

5. Upon such assurance and good faith, the petitioner handed over a blank cheque, deed of an immovable property, mutation certificate, record of rights and LIC policy papers as mortgage to the bank to secure such loan, but the complainant misused the same after betraying the trust of the petitioner. It would be an abuse of the process of law, and in the best interest of justice, the above Judgment 6 and order is liable to be set aside and the case be remanded back for de novo trial to unearth the truth.

6. Learned counsel for the petitioner has placed reliance of a judgment passed in the case of Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal and Another1 particularly paragraphs no. 14, 17 and 20 thereof, to support his contention that the succeeding Magistrate has to record afresh substance of evidence and decide the case, otherwise the evidence recorded by predecessor in chair and conviction ordered by succeeding Magistrate would be bad in law and therefore required to be set aside.

7. Learned counsel further has placed reliance of another judgement in the case of Sukhjit Singh v State of Punjab2, particularly paragraphs no. 10 to 14, to support his contention that the conviction can be reversed and set aside, when no incriminating materials have been brought to the notice of the accused while examination under Section 313 of the Cr.P.C. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY:

8. Per contra, learned counsel appearing on behalf of the opposite party vehemently raised an objection against seeking such prayer for setting aside the impugned judgement and order and further