Tirthankar Ghosh, J
1. The present appeal has been preferred against the judgment and order of acquittal dated 05.09.2018 passed by the learned Additional Sessions
Judge, FTC-3rd Court, Barrackpore in connection with Criminal Appeal No. 6/2017 wherein the Appellate Court reversed the order of conviction and
sentence passed by the learned Judicial Magistrate 5th Court, Barrackpore in C-Case no. 466/2009 (TR Case no. 324/09) under Section 138 of the
Negotiable Instruments Act.
The complainant/appellant filed a complaint before the learned ACJM, Barrackpore alleging commission of offence punishable under Section 138 of
the Negotiable Instruments Act (hereinafter referred to as ‘N.I. Act’) against the accused/respondent namely Mithu Ghosh. The allegations
made in the petition of complaint were to the effect that the complainant and the accused had business relationship and as such they were known to
each other. The accused was chairperson of M/s. Sun Creative Images Pvt. Ltd. and on or about 25.06.07 the complainant entered into an agreement
for telecasting a serial ‘Ghatak’ in Sun TV Bangla. It was agreed by and between the parties that there were number of episodes and each
episode was of 23½ minutes. For the said purpose as security deposit a sum of Rs.3,00,000/- was tendered. A further sum was demanded by the
accused in order to incorporate the TV channel namely Sun TV Bangla, which the complainant collected from his friends and gave him with a hope
that his serial ‘Ghatak’ would be telecast. It has been alleged that from 26.06.2008 to 12.12.2008 on different dates the complainant paid by
cash a sum of Rs.9,70,000/-. In discharge of such debt and legal liability the accused issued an account payee cheque in favour of the complainant for
a sum of Rs.9,70,000/- bearing Cheque No. 767432 dated 12.12.08 drawn on Punjab National Bank, G.T. Road Branch, Burdwan. The said cheque
was presented several times i.e. on 12.12.08, on 01.01.09, on 27.04.09 and on 14.05.09 and on each occasion the same was dishonoured with the
endorsement ‘fund insufficient’. Lastly the cheque was presented with the complainant’s banker i.e. United Bank of India, Titagarh Branch
on 08.06.09 which was dishonoured vide return memo dated 09.06.09 issued by Punjab National Bank, 18, N.S. Road, Kolkata-1, Branch with the
endorsement ‘fund insufficient’ and the bank return memo along with the dishonoured cheque was received by the complainant on 09.06.09.
The complainant sent notice of demand by registered post with A/D dated 23.06.09 through his learned Advocate demanding the amount of
Rs.9,70,000/- within 15 days from the date of receipt of the notice. The said notice/letter was sent on23.06.09 vide postal receipt no. 2981 dated
23.06.09 which was returned with postal remarks ‘absence’ or ‘refused’ on 02.07.09 and was received by the learned Advocate for the
complainant on 14.07.09. The complainant alleges that the accused refused to accept the notice and neglected to pay the amount covered by the
dishonoured cheque and as such made herself liable for commission of offence punishable under Section 138 of the Negotiable Instruments Act.
On such complaint being filed before the learned ACJM, Barrackpore, cognizance of the offence was taken and the case was transferred to the
Court of the learned Judicial Magistrate, 5th Court, Barrackpore for trial and disposal. Process was issued after considering the initial evidence under
Section 200 of Code of Criminal Procedure and under Section 145 of the N.I. Act. The accused appeared before the Court and he was thereafter
examined under Section 251 of the Code of Criminal Procedure and the substance of the acquisition was read over to her to which she pleaded not
guilty and claimed to be tried.
Records of the case reflect that the sole witness examined in this case is the complainant himself as PW1. The defence did not tender any witness.
Number of documents were relied upon by the prosecution which included Ext.1, Cheque; Ext.2 and Ext.2/1, the deposit receipt of UBI, Titagarh
Branch dated 12.12.08 and return memo dated 15.12.08; Ext.3 and Ext.3/1, bank deposit slip dated 01.01.09 and return memo dated 02.01.09; Ext.4
and Ext. 4/1, bank deposit slip dated 17.03.09 and return memo dated 19.03.09; Ext.5 and Ext.5/1, deposit slip dated 27.04.09 and return memo dated
28.04.209; Ext.6 and Ext.6/1, deposit slip dated 12.05.09 and bank return memo dated 14.05.09; Ext.7 and Ext.7/1, deposit slip dated 08.06.09 and
bank return memo dated 09.06.09; Ext.8, demand notice dated 23.06.09; Ext. 8/1, posted receipt of demand notice dated 23.06.09; Ext.9, envelope
which was refused by the accused.
PW1, Subrata Bose, complainant in his evidence stated that the affidavit-in-chief which was filed was drafted as per his instruction and he signed the
same after going through the contents in each of the pages. The complainant in course of his examination-in-chief on dock also identified the cheque
bearing no.767432 dated 12.12.08 drawn on Punjab National Bank, Bardhaman Branch, amounting to Rs.9,70,000/- which was issued by the accused
Mithu Ghosh. The witness also identified the deposit slips by way of which the same cheque was presented on 12.12.08, 01.01.09, 17.03.09, 27.04.09,
12.05.09 and 08.06.09; the witness also identified bank return memos in respect of each of the presentation so made which were dated 15.12.08,
02.01.09, 19.03.09, 28.04.09, 14.05.09 and 09.06.09, the deposit slips and the bank return memos were respectively marked as Ext.2 and Ext.2/1, Ext.3
and Ext.3/1, Ext.4 and Ext.4/1, Ext.5 and Ext.5/1, Ext.6 and Ext.6/1 and lastly Ext.7 and Ext.7/1. The demand notice which was sent to the accused
dated 23.06.09 was marked as Ext.8 by the Court and the postal receipt in respect of the demand notice was marked as Ext.8/1, while the envelope
which was refused by the accused was marked as Ext.9. The complainant prayed for relief before the Court. The complainant was confronted in
cross-examination to which he answered he did not tender any trade license before the Court, he did not tender any copy of his income tax returns
before the Court and he did not file any copy of the agreement before the Court. The complainant was again cross-examined on 08.06.16 on the said
date he was confronted regarding the transaction in respect of which he answered that the transacted amount was not shown in his account, neither in
the complaint or in evidence he has supplied or deposed regarding the exact date of transaction. The witness stated that the amount involved in the
transaction was paid by cash and at the relevant point of time he was maintaining two bank accounts one at United Bank and one at ABN Amro
Bank. It was further stated by the witness that he did not make any payment through the said bank accounts and he had borrowed the said amount
from his acquaintances namely, Abhijit Das, Anup Modak, Jhotirmay Das and Krishnendu Nath. The witness was again cross-examined on 02.05.09
when he was confronted with the question regarding the factum of borrowing of the money, the witness answered that he would adduce evidence of
his friends whose names he mentioned earlier as witness. But on a suggested question that the accused never issued the cheque, the same was denied
by the complainant.
The learned trial Court by its judgment dated 07.01.17 was pleased to convict the accused/respondent and sentence her to pay compensation of
Rs.19,40,000/- (Rupees nineteen lakh and forty thousand) only in default to suffer Simple Imprisonment for four months. The issues which weighed
with the learned trial Court for arriving at the finding of guilt were the documentary evidence relating to the cheque, the deposit slips, the return
memos, the demand notice along with the copies of the notice being refused by the accused remaining un-challenged by the accused in course of the
trial. What further weighed with the learned trial Court was the decision of the Hon’ble Supreme Court in Hiten P Dalal â€"Vs. â€" Bratindranath
Banerjee reported in (2001) 6 SCC 16 and Maruti Udyug Ltd. Vs. Narendra reported in (1999) 1 SCC 113, wherein it has been held by the
Hon’ble Supreme Court that by virtue of Section 139 of the N.I. Act the Court has to draw a presumption that the holder of the cheque received
the cheque for discharge of a debt or liability until the contrary is proved. According to the learned trial Court although the complainant in the instant
case has produced number of documents which would satisfy the requirements of the Negotiable Instrument Act yet the defence/accused did not
produce a single document and the defence case was only a case of mere denial. What further weighed with the learned trial Court was that although
the complainant relied upon number of documents and also orally deposed to prove his case but the accused neither filed any documents or examined
any witness to rebut the prosecution case. The learned trial Court after considering the overall oral and documentary evidence which surfaced in
course of the trial of the case was of the opinion that the surrounding circumstances, probabilities/improbabilities and prevailing laws leads to the
conclusion that the prosecution/complainant has been able to prove the case under Section 138 of the N.I. Act and as such convicted the accused and
imposed sentence as stated above.
Being aggrieved by the order of conviction and sentence passed by the learned Trial Court in C-Case no. 466/2009 (TR Case no. 324/09) the accused
preferred an appeal being Criminal Appeal no. 06./17 the said appeal was finally heard out by the learned Additional Sessions Judge, FTC 3rd Court,
Barrackpore, 24 Parganas North. The learned Appellate Court after finally hearing both the parties was pleased to set aside the judgement and order
of conviction and sentence so passed by the learned trial Court on 07.01.17 and acquitted the accused/appellant. The reasons which weighed with the
learned Appellate Court was that no agreement for telecasting of the TV Serial was produced by the complainant/respondent, neither the trade licence
or the income tax return was produced before the learned Trial Court. According to the appellate Court the complainant has admitted that he
maintained two bank accounts one with the United Bank of India and other with ABN Amro Bank. During the relevant period of transaction the
friends name according to the complainant never reflected in his tax accounts nor was it reflected by any documents and the oral evidence of the
persons who gave the money to the complainant was also not available in evidence. The appellate Court assigned two reasons that from the natural
conduct it is not believable that a person would borrow money of Rs.9,70,000/- from five persons in cash for lending the same to another person and
that too without any interest and secondly such money was paid or taken without any documentation. No copy of paper was also produced before the
Court which suggests that no transaction took place between the complainant and the accused. So far as the law is concerned the learned Appellant
Court held that although there is a presumption under Section 139 of the N.I. Act in favour of the drawee, but the said presumption is rebuttable
presumption. The debt referred to in the provision is a legally enforceable debt of law and therefore it is open to the accused to raise a defence
regarding legality of any debt or liability. Additionally the appellate Court assigned the reasons that the complainant is required to prove independently
that the cheque in question was issued by the accused in discharge of liability or a legally recoverable debt. The complainant in the present case has
failed to discharge such liability as he has not been able to prove that any dates also in respect of which money was advanced or given as loan to the
accused. It has been observed by the learned Appellate Court that the cheque in question was signed by the complainant with a different ink and the
particulars regarding the date, name and the amount which has been filled up was with different ink, no chit of paper has been produced by the
complainant in support of such transaction, the infirmities according to the appellate Court are sufficient for drawing inference in favour of the
accused that the cheque was never issued in discharge of liability. With the aforesaid observation the learned Appellate Court decided to set aside the
order of conviction and sentence so passed by the learned Trial Court on 07.01.17.
Mr. Niladri Sekhar Ghosh, learned Advocate appearing for the appellant submitted that the cheque in question was admitted in evidence without any
objection and the learned appellate Court on its own stressed in the difference in ink with regard to the signature of the accused on the cheque and the
body of the cheque. There was no material in evidence whereby the defence has challenged the signature or taken a plea of a lost cheque. The nature
of cross-examination itself would reflect that the same was a case of mere denial and finding out certain minor inconsistencies in the prosecution case.
No evidence was led by the accused to dislodge as to how the cheque came in possession of the complainant rather emphasis was made in cross-
examination wherefrom complainant obtained the money to give loan to the accused. The appellate Court according to the learned Advocate ignored
the provisions of Section 139 and Section 118 of the N.I. Act and arrived at its finding of acquittal based on standard of proof beyond reasonable
doubt as in Indian Penal Code offences which by no stretch of imagination can be an accepted proposition in cases under the provisions of Negotiable
Instruments Act. Lastly prayer was advanced by the appellant for setting aside the order of acquittal and confirming the order of conviction and
sentence passed by the Learned Trial Court.
Mr. Debasis Kar, learned Advocate appearing for the respondent/accused supported the judgment of the appellate Court and argued that a
complainant in a case under the provisions of the N.I. Act cannot claim as of right the amount covered by the dishonoured cheque until and unless he
substantiates his case that the cheque was issued in discharge of legally enforceable debt or liability. To that aspect learned Advocate drew the
attention of the Court to relevant part of the cross-examination as also the findings of the appellate Court to the effect that there was no agreement
between the parties, no trade license was produced, no money receipt was brought in evidence to show as to wherefrom the money was borrowed by
the complainant, neither the persons whose names were disclosed in evidence (as those who gave money to the complainant) were examined in
support of the prosecution case. Further the observation of the appellate Court with regard to the difference in ink do support the defence case that
the cheque was not issued in discharge of liability and as such the appeal should be dismissed.
Before appreciating the evidence and the arguments addressed by both the parties as also the reasons cited by the appellate Court and the trial Court
in their judgment, some precedents of the Hon’ble Supreme Court are required to be considered. In Oriental Bank of Commerce â€"Vs. â€
Prabodh Kumar Tewari reported in 2022 SCC OnLine SC 1089 the relevant paragraphs are set as follows:
“4. The respondent admits that he signed and handed over a cheque to the appellant. According to the respondent a signed blank cheque was
handed over by him. The question which arises in the appeal is whether the High Court was correct in permitting the respondent to engage a hand-
writing expert to determine whether the details that were filled in the cheque were in the hand of the respondent. For the reasons set out below, we
have allowed this appeal against the order of the High Court for the reason that Section 139 of the NI Act raises a presumption that a drawer handing
over a cheque signed by him is liable unless it is proved by adducing evidence at the trial that the cheque was not in discharge of a debt or liability. The
evidence of a hand-writing expert on whether the respondent had filled in the details in the cheque would be immaterial to determining the purpose for
which the cheque was handed over. Therefore, no purpose is served by allowing the application for adducing the evidence of the hand-writing expert.
14. In Bir Singh v. Mukesh Kumar,3 after discussing the settled line of precedent of this Court on this issue, a two-Judge Bench held:
33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear
that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque
had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than
the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in
itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by
adducing evidence.
[…]
36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under
Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
(emphasis supplied)
15. The above view was recently reiterated by a three-Judge Bench of this Court in Kalamani Tex v. P. Balasubramanian.4
17. In AnssRajashekar v. Augustus Jeba Ananth,5 a two Judge Bench of this Court, of which one of us (D.Y. Chandrachud J.) was a part, reiterated
the decision of the three-Judge Bench of this Court in Rangappa v. Sri Mohan6 on the presumption under Section 139 of the NI Act. The court held:
12. Section 139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in
whole or in part, of a debt, or liability. The expression “unless the contrary is proved†indicates that the presumption under Section 139 of the Act
is rebuttable. Terming this as an example of a “reverse onus clause†the three-Judge Bench of this Court in Rangappa held that in determining
whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the
presumption under Section 139 of the Act is guided by a preponderance of probabilities. This Court held thus:
“28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping
this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of
“preponderance of probabilitiesâ€. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a
legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the
complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her
own.â€â€
In P. Rasiya â€"Vs. â€" Abdul Nazer reported in 2022 SCC OnLine SC 1131, the Hon’ble Supreme Court has dealt with the issue relating to
nature of transactions and source of funds of the complainant in the backdrop of the provisions of Section 138 of the N.I. Act and in the following
paragraphs has been pleased to observe as follows:
“7. Feeling aggrieved and dissatisfied with the judgment and orders passed by the Appellate Court affirming the conviction of the accused under
Section 138 of the N.I. Act, the accused preferred three different Revision Applications before the High Court. By the impugned common judgment
and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in
the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to
note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that
the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability.
Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of
the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt
or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is
issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to
prove the contrary. The aforesaid has not been dealt with and considered by the High Court. The High Court has also failed to appreciate that the
High Court was exercising the revisional jurisdiction and there were concurrent findings of fact recorded by the courts below.
8. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court is not sustainable and
the same deserves to be quashed and set aside.
9. Under the circumstances, the impugned judgment and order passed by the High Court acquitting the accused for the offence punishable under
Section 138 of the N.I. Act is hereby quashed and set aside and the order passed by the learned trial Court convicting the accused for the offence
punishable under Section 138 of the N.I. Act confirmed/modified by the learned Sessions Court is hereby restored. Now, the accused be dealt with as
per the order passed by the first Appellate Court/Sessions Court.â€
In Tedhi Singh â€"Vs. â€" Narayan DassMahant reported in (2022) 6 SCC 735 the Hon’ble Supreme Court was pleased to deal with the manner
in which complainant is expected to lead evidence in a proceeding under the provisions of Section 138 of N.I. Act. It has been held that unless the
accused in reply notice to the statutory notice sent is able to set up a case regarding the capacity of the complainant there is no requirement of the
complainant to lead such evidence. In case the accused intends to demonstrate he has to examine his witness and place documentary materials to
rebut the prosecution or the complainant’s case. The following paragraphs of the cited judgment require consideration and are set out as follows:
“8. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the NI Act provides that court shall presume
that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other
liability. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to
establish that there is no consideration received. It is in the context of this provision that the theory of “probable defence†has grown. In an earlier
judgment, in fact, which has also been adverted to in Basalingappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571] , this
Court notes that Section 139 of the NI Act is an example of reverse onus (see Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 :
(2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] ). It is also true that this Court has found that the accused is not expected to discharge an unduly
high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to
whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and
circumstances that exist.
10. The trial court and the first appellate court have noted that in the case under Section 138 of the NI Act the complainant need not show in the first
instance that he had the capacity. The proceedings under Section 138 of the NI Act is not a civil suit. At the time, when the complainant gives his
evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be
expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the courts in our view were right in
holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and
therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and
producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He
can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately, it becomes the duty of
the courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has
shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.â€
In the present case the only relevant answers in cross-examination were a mode of denial wherein PW1 answered in respect of a question of the
accused that “Not a fact that, the accused persons never issued cheque of the amount Rs.9,70,000/-â€.
A series of question were asked in reply to which the following answers were given by the PW1 in cross-examination which are set as follows:
“Not a fact that, I did not give any money to the opposite party for which I am (read ‘have’) demanded my dues from him. Not a fact that, I
cannot claim any dues (read ‘dues’) from him. Not a fact that, I have filed a false and fabricated case. Not a fact that, I have not filed any
bank related document. Not a fact that, I have deposed falsely before this court.â€
In this case the accused did not adduce any evidence nor did she rely upon any documentary materials to rebut the prosecution or the
complainant’s case. As such the aforesaid three judgments of the Hon’ble Supreme Court assumes importance in view of the fact that all the
questions which were confronted relate to source of funds of the complainant and the capacity of the complainant to give such money to the accused
neither any document has been relied upon by the defence to show that there cannot be such due nor the signature in the cheque has been disputed.
Thus, it would be very difficult for a Court to accept rebuttal of the statutory presumption available under the provisions of the Negotiable Instruments
Act. The issues which weighed with the Appellate Court in acquitting the accused that the complainant has not been able to prove that the cheque
was issued by the convict/appellants in discharge of his liability or any legal enforceable debt; the reasons for coming to such a conclusion is because
of the complainant in cross-examination has neither given the date, month or the year when the loan was given nor had be obtained any receipt from
the accused; the amount of loan has neither been reflected in the income tax return of the complainant nor has it been in the books of account; on the
contrary the cheque in question was signed by the accused with the different ink and the particulars regarding the date, name and money it has been
filled up in the cheque which has been in different ink, no chit of paper has been produced by the complainant in support of the transaction of a huge
sum of Rs.9,70,000/-. Such infirmities according to the appellate Court are sufficient to draw inference regarding the probability of defence of the
accused that he has not issued the cheque for discharging the liability and the Magistrate Court erroneously banking upon Section 139 of the N.I. Act
to arrive at its finding of guile.
The aforesaid observations of the appellate Court are beyond the scope of appreciating evidence in respect of provisions relating to adjudication of
offence under Section 138 of the N.I. Act. Section 139 of the N.I. Act is a statutory presumption which carries with it an expression “unless the
contrary is provedâ€. The test of proportionality in such cases must guide the determination of the issue of rebuttal. As such what is required for the
accused to do in such case is to raise a probable defence. It cannot be a probable defence that the complainant has no capacity to pay the money until
and unless an initial defence is set up by a reply notice or the accused examines his witnesses and relies upon documentary evidence. In this case the
signature in the cheque also has not been challenged, no evidence to that effect is reflected in the cross-examination of PW1 (the sole witness in this
case). Further, no materials have been produced to show as to how the cheque was in possession of the complainant as there are no allegations of lost
cheque or the signature in the cheque being forged. Although it is permitted in a case of such nature to raise a probable defence from the available
materials in the cross-examination of the prosecution witness only, but the nature of the cross-examination and the probable defence raised by the
accused do not qualify as a rebuttal to the provisions under Section 139 of the N.I. Act and the learned Appellate Court unnecessarily resorted to the
issue of difference in ink as no case has been made out by the accused for the cheque having been lost or the same was obtained by coercion.
Having regard to the factual circumstances presented by the prosecution/complainant in this case in its evidence and the accused having failed to
create or raise any defence to rebut the statutory presumption and having regard to the aforesaid three cited judgments of the Hon’ble Supreme
Court the order of the Appellate Court calls for interference. Accordingly, the judgment and order of acquittal dated 5th September, 2018 passed by
the learned Additional Sessions Judge, FTC-3rd Court, Barrackpore, in Criminal Appeal No. 06/17 is hereby set aside and the judgment and order
dated 07.01.17 passed by the learned Judicial Magistrate, 5th Court, Barrackpore in C-Case No. 466/09 (TR Case No. 324/09) is hereby confirmed.
The respondent/accused is directed to comply with the order of the learned Judicial Magistrate 5th Court, Barrackpore, within a period of four weeks
i.e. by 7th December, 2022, in the alternative the learned Judicial Magistrate, 5th Court, Barrackpore would exercise his powers under Section 421 of
the Code of Criminal Procedure for executing the sentence.
Thus, CRA 685 of 2018 is allowed.
Pending Applications, if any, are consequently disposed of.
Department is directed to send back the Lower Court Records to the learned Appellate Court as well as the Learned Trial Court within 15th of
November, 2022, so that effective steps are taken by the learned trial Court.
All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court.
Urgent Xerox certified photocopy of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
