Criminal Appeal against Conviction in a complaint case for the offences punishable under Section 138 of the Negortiable Instrument Act 1881
District : South 24 Parganas
In the Court of the Learned
District & session Judge, at Alipore, South 24 Parganas.
Criminal Appeal Jurisdiction
Criminal
Appeal no. of 2018
In
the matter of :
An
appeal under Section 374 ( 3 ) of Criminal Procedure Code’ 1973;
AND
In
the matter of :
An
appeal against Judgment of Conviction, viz. Judgment dated 30-07-2018, passed
by Shri Samrat Roy, Learned Judicial Magistrate, 4th Court, at
Alipore, South 24 Parganas, in AC no. 2274 of 2009;
AND
In
the matter of :
Impugned
Judgment dated 30-07-2018, passed by Shri Samrat Roy, Learned Judicial
Magistrate, 4th Court, at Alipore, South 24 Parganas, in AC no. 2274
of 2009;
AND
In
the matter of :
Sri
Sanjeev Kumar Singh, Son of Shri Jayaram Singh, residing at premises being no.
95 (331), Rai Bahadur Road, Police Station – Behala, Kolkata – 700 053,
District – South 24 Parganas.
________Appellant
-
Versus –
1.
Smt. Indira Pal, Wife of Sri Debabrata
Pal, residing at premises being no. 135/L, Shyama Prosad Mukherjee Road, Police
Station – Tollygunge, Kolkata – 700 026, District – South 24 Parganas;
2.
The State of West Bengal ;
________Opposite Parties
The
humble petition being memo of appeal, made on behalf of the appellant above
named, most respectfully;
Sheweth as under :
1.
That the present appeal being
preferred from Judgment dated 30-07-2018, passed by Shri Samrat Roy, Learned
Judicial Magistrate, 4th Court, at Alipore, South 24 Parganas, in AC
no. 2274 of 2009, by the appellant, who is an accused person in the said
complaint case proceeding instituted by the opposite party no. 1, Smt. Indira
Pal, under Section 200 of the Criminal Procedure Code’ 1973, for the offences
committed to be punishable under Section 138 of the Negotiable Instrument Act’
1881.
2.
That the appellant beg to states that
on receipt of the summons issued by the Learned Judicial Magistrate, at
Alipore, South 24 Parganas, the appellant made his appearance and contest the
said complaint case proceeding, and whereas the Learned Magistrate, 4th
Court, at Alipore, South 24 Parganas, was pleased to pass Judgment dated
30-07-2018, passed by Shri Samrat Roy, Learned Judicial Magistrate, 4th
Court, at Alipore, South 24 Parganas, in AC no. 2274 of 2009, pronouncing
conviction of the appellant herein.
3.
That the extract of the operative
portion of the said Judgment dated 30-07-2018, passed by Shri Samrat Roy,
Learned Judicial Magistrate, 4th Court, at Alipore, South 24
Parganas, in AC no. 2274 of 2009, is reproduced as follows :
“
The accused, Sanjeev Kumar Singh, is hereby sentenced to suffer simple
imprisionment for a term of one year coupled with payment of fine of Rs.
1,80,000/- ( Rupees One Lakh Eighty Thousand ) only, out of which the entire
amount shall be paid & disbursed as compensation u/s 357, Cr.P.C to the
Complainant within one month from passing of this order.
In default of
payment of the compensation amount, the complainant will be at liberty to
proceed against the accused under proviso to Section 421 (1/b), CrPC in order
to realize the said amount”.
4.
That Being aggrieved of the said
Judgment dated 30-07-2018, passed by Shri Samrat Roy, Learned Judicial
Magistrate, 4th Court, at Alipore, South 24 Parganas, in AC no. 2274
of 2009, the appellant preferred this appeal under Section 374 (3) of the
Criminal Procedure Code’ 1973, the Appellant
seeks liberty of this Learned Court to raise the following grounds amongst
other :
G R O U N D
I.
FOR THAT the impugned Judgment and order of conviction is bad in law and
liable to be set aside, in the interest of administration of justice;
II.
FOR THAT the impugned Judgment and order of conviction is bad in law on
the teeth of it as the same has been passed travelling beyond the evidence laid
before the Learned Trial Court;
III.
FOR THAT the Learned Trial Magistrate has failed miserably, while
passing the impugned Judgment and order, to appreciate the scope, ambit, and
purport of the charge framed against the accused persons;
IV.
FOR THAT the Learned Trial Magistrate has either misconstrued and or
failed to apply his judicial mind in appreciating the relevant provisions of
the Negotiable Instrument Act’ 1881, coupled with judicial pronouncements in
this respect;
V.
FOR THAT the law has finally set at rest by the Hon’ble Apex Court in
regard to the offences of such a nature which the Learned Magistrate did not
take into consideration while passing the impugned Judgment and Order;
VI.
FOR THAT the Learned Trial Magistrate was pleased to rely more upon the
statement of the complainant than other evidence and materials on record and as
the prosecution case cannot stand upon ;
VII.
FOR THAT the Learned Magistrate has failed to appreciate the scope and
ambit of the relevant provisions of law along with allegations made in the
complaint and the evidence laid before the Learned Trial Court ;
VIII.
FOR THAT the Learned Trial Magistrate has not taken into account the
relevant provisions of Evidence Act’ 1872, while passing the impugned order
& Judgment of conviction ;
IX.
FOR THAT the Learned Trial Magistrate ought not to have acted on some
extraneous consideration but to the evidence, relevant laws and the documents
placed before the Learned Court;
X.
FOR THAT the Evidence of the PW-1, the complainant states as “ I have
passed BA. I signed on the 4 pages of the said documents after pen through the
signature of Debobrata Pal” and which the Learned Magistrate failed to
consider;
XI.
FOR THAT the Evidence of the PW-1, the complainant states as “ My
petition of complaint is not supported by an affidavit” and which the Learned Magistrate
failed to consider;
XII.
FOR THAT the Evidence of the PW-1, the complainant states as “ My
husband initiated the instant case” and which the Learned Magistrate failed to
consider;
XIII.
FOR THAT the reasoning given by the Learned Magistrate is contradictory,
inconsistent and not in accordance with the law and the same is liable to be
quashed and or set aside;
XIV.
FOR THAT the Learned Trial Magistrate fails to appreciate the
prosecution witnesses while passing the impugned judgment and order of
acquittal in its proper perspective and as such came to a finding which is not
tenable in the eye of law;
XV.
FOR THAT the impugned Judgment and order of conviction is not in
accordance with the law;
XVI.
FOR THAT the Learned Trial Magistrate was intend to convict the accused
person from the initiation of trial before the Learned Court;
XVII.
FOR THAT the trial was held in a very usfractury manner, and not in any
manner as laid down under the provisions of the related laws;
XVIII.
FOR THAT the Learned Trial Magistrate misdirected himself in giving much
credence to his own assumptions to frustrate the defense case, and as such
failure led to illegal conviction of the accused person ;
XIX.
FOR THAT the Learned Trial Magistrate did not pay attention to the ratio
of law laid down by the Hon’ble Apex Court ;
XX.
FOR THAT the Learned Trial Magistrate failed to appreciate the facts and
circumstances, as produced by the accused person;
XXI.
FOR THAT the observation and explanation as assailed by the Learned
Trial Magistrate in the impugned Judgment and order, is a farfetched expression
based on assumptions and presumption;
XXII.
FOR THAT the Learned Trial Magistrate erred in law in not admitting and
believing the evidences and thereby Learned Court has convicted the accused
person;
XXIII.
FOR THAT the Learned Magistrate, without appreciating in the evidences,
has given much emphasis on the prosecution case which is totally a failure on
the part of the Learned Court;
XXIV.
FOR THAT the impugned Order is
otherwise bad in law and if allowed to stand will result in miscarriage of
justice and so is liable to be set aside.
5.
That the other ground / grounds will
be agitate at the time of hearing of this appeal, before the Learned Court.
6.
That unless this Learned Court
interferes in the present appeal, grave injustice would be caused to the
Appellant.
7.
That this memo of appeal /
application, is made bona-fide and for the interest of administration of
justice.
In
the above stated facts and circumstances, it is therefore prayed that your Honour
may graciously be pleased to admit the appeal and to call for the record of the
case and on perusal thereof, on hearing of the parties, allow the appeal after
setting aside the Judgment and Order of conviction dated 30-07-2018, passed by
Shri Samrat Roy, Learned Judicial Magistrate, 4th Court, at Alipore,
South 24 Parganas, in AC no. 2274 of 2009, and to acquit the accused person,
in the interest of administration of justice, and or to pass such other necessary order or orders or
further order or orders as your Honour may deem, fit, and proper for the end of
justice.
And for
this act of kindness, your appellant as in duty bound shall ever pray.
Certificate :
I, certify that I have perused the
records
of this case, and I certify that there
is merits
and So, I undertake to argue this case
for
the appellants at the time of hearing.
Advocate for the Appellant.
Date :
28-08-2018
Place :
Alipore Judges’ Court
AFFIDAVIT
I,
Sri Sanjeev Kumar Singh, Son of Shri Jayaram Singh, aged about ______years, by
faith Hindu, by Occupation Business, residing at premises being no. 95 (331),
Rai Bahadur Road, Police Station – Behala, Kolkata – 700 053, District – South
24 Parganas, do hereby solemnly affirm and state as follows:
1)
That I am the Appellant herein and as
such being aware of the facts and circumstances of the instant case I am
competent to swear this Affidavit on oath.
2)
That the accompanying application has
been drafted by my counsel under my instructions.
3)
That I am reading and understood the
contents of the appeal and the same are
true to my knowledge and /or true to the records of the case .
4)
That the facts stated herein above are
true and correct to the best of my knowledge and belief and no material
concealment has ever been made thereof.
DEPONENT
Identified by me
Advocate
Prepared in my Chamber;
Advocate
Date : 28th day of August’
2018;
Place : Alipore Judges’ Court.
N O T A R Y
DISTRICT: SOUTH 24-PARGANAS
|
IN THE LEARNED COURT OF DISTRICT & SESSION JUDGE, AT
ALIPORE, SOUTH 24 PARGANAS.
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal no. __________of 2018
In the matter of :
An application under Section 374 (3) of the Code of
Criminal Procedure’ 1973;
A N D
In the matter of :
Sri Sanjeev Kumar Singh,
________
Appellant.
_ Versus –
Smt. Indira Pal, & another,
__________Opposite
Parties.
Memorandum of
Appeal
Ashoke Kumar Singh
Advocate,
High Court, Calcutta
Bar Association, Room No. 15
Mobile No. 98368 29666
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