Arindam Lodh,J. -
(1.) The instant appeal arises out of judgment dated 08.06.2018 passed in connection with case No. NI 205 of 2015 wherein the respondent had been acquitted from the charges levelled against him under Section 138 of the Negotiable Instrument Act 1881 and dismissed the application filed by the complainant-appellant.
(2.) Briefly stating, the facts are that the complainant-appellant and the accused-respondent are professional contractors, but, since they did not have any enlistment licence, both of them executed a Government work under the licence of Shri Suman Bhattacharjee of N.G. Bhattacharjee Bricks Constructions Company. The said work was started on 1st April 2011 and ended in the month of December, 2014. It was agreed upon between them that profit and loss would be shared at 50:50 ratio and being mutually decided, the investment of complainant would be 40 per cent of the total capital investment on the condition that he would supervise the entire work including collecting of materials from the market on credit. It is specifically stated in the complaint that the accused-respondent taking advantage of his close relationship with Suman Bhattacharjee had received all the payments of the work and, finally, on 28.01.2014, in presence of Shri Ratan Miah @ Nur Ahmed, Shri Habul Deb and Shri Debasish Roy, both the complainant and the accused-respondent had arrived at the final settlement. After completion of work and finalization of the account, it was revealed that the complainant was entitled to get an amount of Rs.4,79,294/- only from the respondent. It was also found that the complainant was entitled to get back 50 per cent of the total security deposit of Rs.10,00,000/- i.e., Rs.5,00,000/-. According to the complainant, the respondent had a legal debt of Rs.9,79,294/- towards the complainant and out of the said amount he paid Rs.1,75,000/- by cheque to the complainant which was duly encashed and, therefrom, after encashment of the said cheque, the legal liability of the accused-person towards the complainant stood at Rs.8,04,294/-. The complainant-appellant requested the respondent to pay the balance amount of his debt to him, but, he failed to make any payment. However, finally, the accused-respondent had issued two post dated cheques dated 06.04.2015, out of which one was for Rs.5,00,000/- and another one was Rs.3,04,294/- as security with the assurance that if he failed to pay the total indebted amount within 31.03.2015, the complainant-appellant would deposit these cheques for encashment.
(3.) It is the further case of the complainant-appellant that on failure to make payment of the amount mentioned in the cheques, he sent a demand notice on 20.04.2015 through registered post asking for payment of Rs.8,04,294/- within a month and the said notice was duly received by the respondent, but, he failed to make the payment. Ultimately, the complainant-appellant had deposited those two cheques bearing No.168338 dated 06.04.2015 and 168339 dated 06.04.2015 drawn on Axis Bank Limited, Agartala against the account of the accused-respondent bearing No.276010200002394 in the Oriental Bank of Commerce, Agartala Branch. But, on 06.07.2015, both the cheques were returned, being dishonoured on the ground that the account of the accused was closed.;