S.P.TALUKDAR, J. - (1.) BY filing the instant application under Article 227 of the Constitution, the petitioner has sought to assail the impugned judgment and order No. 28 dated 30th January, 2008 passed in Criminal Appeal No.l of 2006 by learned First Court, Fast Track, Additional Sessions Judge, Asansol. Learned Appellate Court by the said judgment affirmed the judgment, order and sentence dated 10th July, 2006 passed by the learned 6th Court of Judicial Magistrate, Asansol in Complaint Case No.87 of 1998.
(2.) GRIEVANCE of the petitioner as ventilated in the present application may briefly be stated as follows :- The accused/petitioner has no legal liability to pay an amount of Rs. 11,000/- to the complainant/O.P. No.l as the suit premises was taken on rent by a partnership firm. The complainant and two others were the partners. As per stipulation made in the tenancy agreement, the security deposit amounting to Rs.38, 500/- made by the partnership firm to be refunded after vacating and handing over the vacant possession of the said premises to the accused/petitioner. The learned Trial Court as well as learned Appellate Court failed to appreciate that the premises has not been vacated by one of the partners Smt. Sunita Sachar and as such, there could be no legal liability. By imposing a fine of Rs.25, 000/- for alleged dishonour of a cheque for an amount of Rsll, 000/ -, learned Trial Court failed to act in accordance with Section 138 of the Negotiable Instruments Act. The complainant, Ram Gopal Santhalia, filed an application under Sec tion 138 of the Negotiable Instruments Act wherein he claimed that he along with Sri Chittaranjan Roy and Smt. Sunita Sachhar carried on their partnership business in the premises owned by the accused person bearing room/Shop No.l/ A, 2nd Floor of Jyoti Super Market at Asansol as his tenant. On 9th September, 1995 they all vacated and handed over the vacant possession of the said premises to the accused person. The accused person took a sum of Rs.38, 500/- as security deposit from the complainant and his two partners on condition that he would refund the same at the time of delivery of vacant possession. The accused, Hari Narayan Burnwal paid an amount of Rs.16, 500/- towards the share of one of the partners Smt. Sunita Sachhar. Out of the remaining amount of Rs.22, 000/-, the accused handed over two cheques of Rs.11, 000/- each. The complainant deposited the said cheque being No.471050 dated 07.01.1998 for an amount of Rs.11, 000/- on Punjab National Bank, Asansol to his banker State Bank of India, Jamuria Bazar Branch. It was returned on 20.01.1998 with the remark that there was no sufficient fund. The complainant served a notice upon the accused through his advocate, Supriya Kr. Chatterjee on 30.01.1998 demanding the sum of Rs.11, 000/-. The accused received the same on 06.02.1998. In absence of any response from the accused person, the complainant was left with no option but to file an application under Section 138 of the Negotiable Instruments act before the learned Court of Additional Chief Judicial Magistrate, Asansol. In support of his case the complainant examined as many as 5 witnesses including himself.
(3.) ON the other hand, the accused examined himself as D.W.I. Documents were exhibited. The accused was extensively examined under Section 313 of the Code of Civil Procedure. Thereafter by judgment and order dated 10th July, 2006, learned Magistrate held the accused/petitioner guilty of the offence under Section 138 of the Negotiable Instruments Act. The accused was convicted accordingly and was directed to suffer imprisonment for a period of six (6) months and to pay a fine of Rs.25, 000/-, in default, he was further sentenced to suffer imprisonment for a period of three (3) months.;