TaxTMI 
TaxTMI 
2026 (7) TMI 1436
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....ellate court affirmed the judgment of conviction and sentence dated 27.09.2019 delivered by the learned Metropolitan Magistrate, 16th Court, Calcutta, in Complaint Case No. 6464 of 2006 (T.R. No. 638 of 2006), whereby the petitioner was sentenced to suffer simple imprisonment for six months and to pay compensation to the tune of Rs. 3,00,000/- to the complainant under Section 357(3) of the Code, in default of which he was ordered to undergo simple imprisonment for a further term of three months. FOUNDATIONAL FACTS 3. The prosecution narrative begins with a private criminal complaint instituted by the opposite party no. 2, Chandana Pal. It is the case of the complainant that she maintained a close, sibling-like relationship with the petitioner, who happens to be a practicing Chartered Accountant. Yielding to a personal request by the petitioner, the complainant extended a friendly loan accommodation of Rs. 1,50,000/- via an account payee cheque bearing number 103293 dated 12.05.2003, drawn on Allahabad Bank. This transaction allegedly took place in the presence of one Ramendra Nath Sadhukhan (P.W.3). In acknowledgement of the receipt of the cheque, the petitioner executed a fo....
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....ues and office papers with his friend, one Tapas Paul, for income tax purposes, which had been subsequently misused. The petitioner did not lead any defence evidence. 8. Upon conclusion of the trial, the learned Magistrate convicted and sentenced the petitioner, which was subsequently upheld in appeal, giving rise to the present revisional proceeding. SUBMISSIONS 9. Mr. Debabrata Acharyya, the learned counsel appearing on behalf of the petitioner, has launched a formidable structural challenge against the concurrent judgments of the courts below. He contends that the trial itself stands vitiated due to a fundamental breakdown of procedural due process at the very inception. By drawing the attention of this Court to the original plea form dated 29.03.2008, he highlights that the learned trial Magistrate arraigned the petitioner for an entirely foreign transaction, specifically Cheque No. 901536 dated 27.03.2006 for an amount of Rs. 5,00,000/-. He underscores that while the entire complaint, evidence, and prosecution documents is strictly concerned with Cheque No. 169190 for Rs. 1,50,000/-, the petitioner was forced to plead to a fictional liability of five lakh rupees. Rely....
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....the General Clauses Act, 1897. He thus prays for the dismissal of the revisional application. DISCUSSION 13. The primal question which falls for determination before this Court is whether the stark mismatch between the transaction put to the accused during his arraignment under Section 251 of the Code and the actual instrument under prosecution strikes at the core of the trial's legality, and whether the statutory presumptions under the Act of 1881 stand properly applied or rebutted. 14. In a criminal trial governed by the summons procedure, compliance with Section 251 of the Code is the cornerstone of a fair trial. The provision commands that "when the accused appears or is brought before the Magistrate, the particulars of the offense of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defense to make, but it shall not be necessary to frame a formal charge.". 15. It is settled law that Section 251 of the Code is not a mere empty formality or a routine bureaucratic box to be checked by the trial court. It serves as a vital statutory surrogate for a formal charge. Its overarching purpose is to explicitly apprise th....
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....ponderance of probabilities, which can be drawn from the materials already on record and the cross-examination of the complainant. 20. In K. Prakashan (supra), the Supreme Court ruled that where a complainant claims to be an unemployed individual who secured the loan funds from a relative, but fails to examine that relative or produce clear documentary proof of the source, the initial statutory presumption can be successfully displaced. 21. In the present case, P.W.1 clearly stated during cross-examination: "I am an unemployed lady... my father gave this amount... I have not filed any document to prove that I inherited the amount from my father." Despite this explicit challenge to her independent financial capacity, the prosecution chose to withhold the evidence of her father. Furthermore, a review of the Section 313 Cr.P.C. examination shows that the trial court failed to put this crucial circumstance regarding the source of the funds to the petitioner, which constitutes an independent procedural defect. 22. However, I find no merit in the petitioner's remaining arguments regarding limitation and the service of notice. Although the loan was originally disbursed in May....
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....es at the root of the matter and invalidates the concurrent judgments of conviction. 26. Ordinarily, a breakdown of procedure at the Section 251 stage would compel this Court to set aside the conviction and remand the matter for a fresh trial from the stage of the plea. However, this litigation began twenty years ago, in 2006. Subjecting the parties to a fresh trial after two decades would cause undue hardship and run counter to the interests of judicial efficiency. 27. This Court must take into account the subsequent steps taken during these revisional proceedings. On 15.09.2022, this Court directed the petitioner to deposit the entire compensation amount of Rs. 3,00,000/-before the trial court as a condition for staying the execution of his sentence. The petitioner has fully complied with this direction and deposited the money into the judicial cash section of the lower court. 28. The offense under Section 138 of the Act of 1881 is an economic offense intended to provide financial restitution rather than simple punishment. By depositing the full Rs. 3,00,000/-double the value of the original cheque-the petitioner has fully satisfied the financial claims of the complainan....