- (1.) The challenge in this application under Article 227 of the Constitution Of India is to a concurrent findings of the Ld. Additional District & Sessions Judge F.T.Court No:-4 Barasat , 24- Parganas (North) whereby the order of conviction and sentence of the petitioner under section 138 of Negotiable Instrument Act passed by the Ld. Judicial Magistrate, Court No 1 , Barasat , in C case No:-1129 of 2001 was affirmed. The petitioner has challenged the validity , legality and propriety of the order ,mainly , on the following grounds :----- (a) that the Ld. Courts failed to take into consideration that the Opposite party failed to establish that there was no existence of any legally enforceable debt or liability to be discharged by the petitioner; (b) that the Ld. Courts failed to take a proper decision as to the fact that the cheque in dispute was not issued by the petitioner in favour of the opposite party ; (c) that the Ld. Courts failed to consider that the demand notice was not sent within stipulated period of 15 days from the date of receipt of information from the bank ; (d) that compensation was awarded without giving the petitioner any opportunity of being heard.
(2.) A short reference to the factual backdrop would be expedient to appreciate the matter properly. The petitioner , in discharge of his legal debt / liability, issued one cheque of Rs.75,000/- in the name of the opposite party dated 08.06 2001. The opposite party presented the cheque to his banker for encashment on the next date but , it was returned unpaid on 13.06.2001 with an endorsement "referred to drawer". The oposite party contacted the petitioner who requested the opposite party to present the cheque again. The opposite party presented the cheque again on 29.03 2001 for encashment but , it was returned unpaid from his bank with an endorsement "insufficient of fund " on 03.07.2001. A demand notice was sent by the opposite party to the petitioner through his lawyer on 18.7 2001 but , the petitioner failed to make payment within 15 days from the date of receipt of the demand notice .Accordingly , the opposite party filed a complaint for prosecuting the petitioner under section 138 of the N.I. Act.
(3.) Mr. Pratik Bhattacharjyya , Ld. Counsel for the petitioner contended that the Ld. Courts failed to appreciate the evidence in its proper perspective & came to a wrong finding that the cheque was issued by the petitioner in discharge of any legally enforceable debt / liability. He has taken this court to the deposition of the Complainant, specially his statement in cross-examination and submitted that the complainant admitted the fact that the writings on the cheque , excepting the signature, was not of the petitioner .He further submitted that in the petition of complaint, detail of the alleged loan taken by the petitioner has not been mentioned anywhere but, mentioned only for the first time while the complainant was examined . The Ld. Courts, Mr. Bhattacharjyya contended, were incorrect to believe the statement of the complainant.;