- (1.) M/s. Everett Travel Service lodged one complaint under section 138 of the N.I. Act being no-C-129 of 1999 against 1) M/s. Multi traders Ltd & 2) Bharat Qumar Nandi (hereinafter referred to as petitioners) in the court of Ld. 10th Metropolitan Magistrate, Calcutta. The petitioners were found guilty and accordingly an order of conviction was recorded. The petitioners preferred appeals separately challenging the order of conviction and sentence. The appeal preferred by Bharat Qumar Nandi was registered as Criminal Appeal No. 11 of 2006 while the appeal preferred by the M/s. Fortune Multi-traders Ltd. was registered as Criminal Appeal No.-12 of 2006. The Ltd. Additional Sessions Judge FT court no. 5, Calcutta disposed of both the appeals separately and had taken concurrent findings with slight modification in respect of sentence. The petitioners Bharat Qumar Nandy and M/s. Multi traders Ltd. challenged the legality validity and propriety of the judgment of the Ld. Additional court by filing these two revision applications CRR-2482 of 2007 and CRR-2616 of 2007, respectively. Since, the revision applications are arising out of one judgment and points involved are same, both the applications are disposed of by this common judgment. The petitioners have taken the following points in their applications: (i) that the Ld. Court failed to take note of the legal position that the complainant not being a person in the eye of law having any legal entity, the petition of complaint filed through a representative, was not maintainable in law; (ii) that the Ld. Court erred in not holding the trial under section 326 of the Code of Criminal Procedure in view of section 143 of the N.I. Act.; (iii) that the Ld. Court failed to take note of the fact that no authority to file the complaint was proved; (iv) that the Ld. Court erred in not believing the testimony of the witness Anjan Banerjee in his cross-examination; (v) the judgments being otherwise bad in law, are liable to be set aside. At the Bar, the following decisions have been refereed to: (a) Saraswati Trading Company vs. St. of Gujrat & Anr., 2007 CrLJ 895; (b) Municipal council Vs. Prabhu Narain, 1968 AIR(Raj) 297 (c) K. Ramachandra Rao Vs. St. of A.P., 2005 2 ALT 607 (FB); (d) Firm Sadasukh Janki Das Vs. Kishen Pershad; (e) M.M. Abbas Brothers Vs. Chethandas Fatechand, 1979 AIR(Mad) 272. (f) Rajesh Bhalchandra Chalke Vs. State of Maharastra (g) Govind Ram Channani Vs. Latha & Ors.,2010 1 Bankmann 266 (h) Sankar Finance & Investment Vs. State of A.P., 2008 8 SCC 536 MMTC Limited & Anr. Vs. Med Chm. Vs. P. Limited,2002 SCC(Cri) 212. (i) Asish C. Shah Vs. M/s. Seth Developers Private Limited, 2011 AllMR(Cri) 1528. (j) Milind Shripab Chandurkar Vs. Kalim M. Khan, 2011 AIR(SC) 1588. (k) Janki Vashdeo Vhojwani Vs. Indacent Bank Limited,2005 2 ALT 57. (l) M/s. Manvi Co. Operative Bank Limited Vs. Nimesh D. Thakra,2011 SCC 105. (m) Rajen Sengupta Vs. State of West Bengal,2011 SCD 1185 (n) Pradip Kumar Manhotra Vs. State of West Bengal,2011 SCD 1129. (o) Swapan Mondal Vs. Godrej Agrovet Limited, 2010 2 CalHN 889. (p) K. Prakashan Vs. P.K. Surenderan, 2008 1 SCC 258. (q) Krishan Jarandan Bhat Vs. Dattatrayag. Hegde, 2008 2 SCC(Cri) 166. (r) Sumit Ranjan Chakraborty Vs. Tapas Kumar Nandi, 2011 5 CalHN 124. (s) M/s. M.M.T.C. Ltd. & Anr. Vs. M/S. Medchl. Chemicals & Pharma P. Ltd. & Anr.,2002 CrLJ 247 (t) Shivaji Sampat Jagtap Vs. Rajan Hiralal Arora & Anr., 2007 CrLJ 122 (u) Ranjan Sengupta Vs. State of West Bengal & Ors.,2011 1 Bankmann 452 (Cal) (v) Rangappa Vs. Sri Mohan, 2010 0 CrLJ 2871. It would be proper to look into the prosecution in question to appreciate the entire matter. M/s. Everett Travel Service (herein after referred to as the O.P.), a division of Everett India Private Ltd. had business transaction with M/s. Fortune Multi Traders Ltd. (hereinafter referred to as Petitioner). In course of their business transaction, the O.P. time to time sold & delivered Air-tickets to the petitioner. A total sum of Rs. 2,83,605/- became due to the O.P. The O.P. raised a bill of such amount and the petitioner, in discharge of such liability, issued a cheque, being number-474371 dated 26.10.99. The O.P. placed the said cheque to its banker for encashment but, it was returned due to "payment stopped by drawer". A demand notice was served on the petitioner who, however, failed to make payment of the cheque amount within the stipulated period of time. So, the prosecution against the petitioner was initiated under section-138 of the N.I. Act. The Ld. Trial court found that the O.P. established the case satisfactorily and, accordingly, recorded conviction & sentence. The petitioner challenged the order by preferring an appeal being no. 12 of 2006 and Ld. Appellate court had taken a concurrent finding of both facts and law. The petitioner has challenged the legality, validity and propriety of that concurrent findings on the grounds already stated.
(2.) This court is not oblivious of fact that ordinarily, High court should not upset a concurrent findings in exercising its revisional jurisdiction. It is trite law that only in the exceptional cases where gross violation of fundamental principle of law has occasioned & resulted in miscarriage of justice, High court may make good the wrong but, in doing so, it is not supposed to act as appellate court by way of re-appreciating the evidence which once has been done by the trial court and re appreciated by the appellate court. However, in this case, then petitioner has raised some questions of law and, therefore, it is duty bound to answer the questions although, it appears, the Ld. Appellate answered all of them with reasons.
(3.) There are some admitted facts, such as, [a] there was business transaction between the parties; [b] that a bill was raised by the O.P. amounting to Rs. 2,83,605/-; [c] that a cheque of Rs. 2,83,605/- was issued by the petitioner in favour of the. O.P.; [d] that said cheque was presented by the O.P. before its banker; [e] that the cheque was returned because of "payment stopped by the drawer'; [f] that a demand notice was served on the petitioner and; [g] the petitioner did not make the payment within the time stipulated.;