- (1.) THE challenge in this revision is to the concurrent findings of the learned Appellate Court whereby the order of conviction under section 138 of the Negotiable Instruments Act and sentence passed by the trial Court was affirmed. THE petitioner being the convict has challenged the legality, validity and propriety of the order impugned, mainly, on the following grounds :- (a) that the learned trial Court as well as the learned Appellate Court erred in net considering the factual aspect that there existed no-legally enforceable debt or liability for which the cheque in dispute was allegedly issued by the petitioner; (b) that both the Courts failed to take serious note of the fact that the petitioner allegedly borrowed Rs.1,10,000/-but the cheque in dispute was amounting to Rs. 1,14,500/- which was illegal in view of the fact that the opposite party was not having any money-lending business license under Bengal Money Lenders Act; (c) that the compensation was awarded without giving the petitioner any opportunity of being heard; and (d) that the learned Courts failed to extend the benefit under section 360 & 361 of the Code of Criminal Procedure to the petitioner.
(2.) BEFORE the. points raised by the petitioner are taken up for discussion, it would be expedient to give short reference to the factual backdrop of the case for better appreciation of the entire matter. The petitioner Krishnendu borrowed Rs/- 1,10.000/- from the opposite party Kausik as he needed cash money very badly. Since they were having very cordial relation, Kausik collected the required sum of money from his father and lend that to the petitioner on 20.3.2006 who undertook to repay Rs. 1,14,500 /- within November, 2006. In order to discharge the debt, the petitioner issued a cheque of Rs. 1,14,500/- in favour of the opposite party on 20.11.2006. The opposite party presented the cheque to his bank for encashment but the bank returned the cheque because of "insufficiency of fund". The opposite party served demand notice on the petitioner on 11.4 2007. Despite receiving the notice on 17.4.2007 the petitioner did not pay the money as demanded. Consequently, the opposite party lodged a complaint against the petitioner for prosecuting him under Section 138 of the N. I. Act. In course of the trial, the petitioner had taken a specific plea that the opposite party somehow managed to collect one of his signed blank cheques and written his name and the amount therein. He had also taken a plea he did not take any loan from the opposite party at any point of time. The learned trial Court, upon appreciation of the oral and documentary evidence adduced by the parties, came to a conclusion that the opposite party established satisfactorily that he lend Rs. 1,10,000/- to the petitioner who, in- turn , agreed to repay the same within the month of November,2006 together with Rs. 4,500/-; that the petitioner in fact issued a cheque of Rs. 1,14,500/- in favour of the opposite party in discharge of said debt which ultimately was dishonoured owing to "in sufficiency of fund"; that the opposite party served a demand notice on the petitioner within the stipulated period of time and the petitioner failed to pay the cheque amount within 15 days therefrom and that the action was brought by the opposite party within the period prescribed by the act. The learned Court also came to a conclusion that that the petitioner failed miserably to establish the specific pleas taken by him in course of the trial by any convincing evidence whatsoever. Accordingly, the Id. trial Court recorded conviction of the petitioner for committing the offence under section 138 of the N.I. Act and sentenced him to suffer simple imprisonment of 15 days and to pay Rs. 1,65,000/- to the petitioner towards compensation. The order was appealed against by the petitioner. The learned Appellate Court however, found that the findings of the trial Court was correct and affirmed the order after dismissing the appeal. That concurrent findings of fact has been challenged by the petitioner in this revision on the grounds already stated.
(3.) MR. Sandipan Ganguly, learned Counsel appearing for the petitioner contended that the money allegedly borrowed was Rs. 1,10,000/- but the cheque in dispute was amounting to Rs. 1,14,555/-.This suggested clearly that the opposite party claimed interest on the principal which he could not do without having any license under The Bengal Money Lenders Act, 1940 Therefore, MR. Ganguly contended, the entire transaction being illegal, no- legally enforceable debt or liability was existed which the petitioner was supposed to discharge in view of the Explanation to the section 138 of the N. I. Act. In support of his contention , MR. Ganguly referred to a decision of Bombay High Court in Nanda v. Nandakishore, reported in (2010) 2 E.Cr.N. (BOM) 1459. Mr, Ganguly contended further that the opposite party had no financial capacity to pay such a big amount of money to the petitioner. If so, the Courts ought not have believed that he in fact, lend money to the petitioner as alleged. A decision of the Apex Court in Krishna Janardan Bhat v. Dattatraya G. Hegde, reported in (2008)4 SCC 54 in support of his contention was referred to by Mr. Ganguly.;