- (1.) The captioned revision applications have arisen out of one judgment dated 15.7.2009 passed by the learned Additional Sessions Judge, 3rd Court at Howrah in Criminal Appeal No. 17 of 2008. The parties to that criminal appeal and these revision applications are same. This Court, accordingly, proposes to dispose of both the applications by this common judgment In a criminal prosecution under section 138 of Negotiable Instrument Act, the complainant Kartick Chandra Das alleged that the accused Sanjoy Mukherjee borrowed Rs. 2,00,000/- from him as he was in dire need of money, on condition to repay the loan by December 2004 and till repayment he would pay interest @ Rs. 8000/- per month. Sanjoy Mukherjee repaid the loan amount of Rs. 2,00,000/- with interest of Rs. 8000/- for the month of October 2004 by drawing and issuing a cheque of Rs. 2,08,000/- being No. 898436 dated 27.12.2004 on P.N.B., Nimtala Posta Branch in the name of Kartick Chandra Das. While handing over the cheque, he requested Kartick not to present the cheque till he makes payment of interest at the agreed rates. But, he stopped paying interest from April 2005. Kartick presented the cheque in the UBI, Sahanpur Branch, Das Nagar on 24.6.2005. The cheque was returned with remark "insufficiency of Fund". A demand notice was sent on 4.7.2005. Sanjoy failed to pay the cheque amount within stipulated time. The complainant Kartick finding no alternative, lodged the complaint against him under section 138 of N.I. Act.
(2.) The learned Magistrate after recording evidence of both the parties, came to a conclusion that Sanjoy committed the offence under section 138 of N.I. Act and accordingly, convicted him thereto. He was sentenced to undergo S.I. for 5 days and to pay a fine amount of Rs. 4,16,000/-, being twice amount of cheque, as compensation, to the complainant i.e. Kartick Chandra Das.
(3.) Sanjoy Mukherjee (hereinafter referred to as accused) preferred an appeal challenging the sustainability of the judgment of conviction and sentence. The appeal was registered as Criminal Appeal No. 17 of 2008 and was disposed of by the learned Additional Sessions Judge, 3rd Court at Howrah. The learned Appellate Court affirmed the order of conviction but modified the order of sentence to the effect that the accused is sentenced to pay a fine of Rs. 1,36,000/-, in default, to suffer S.I. for three months. The accused Sanjoy has come up with the revision application being No. C.R.R. 3441 of 2009 challenging the legality, validity and propriety of the judgment passed by the learned Additional Sessions Judge in Criminal Appeal No. 17 of 2008 on the following grounds: i) that the learned Court failed to appreciate that their existed no legally enforceable debt which the accused/petitioner was supposed to discharge; ii) that the learned Appellate Court failed to consider that the provisions of section 139 and section 118 of the N.I. Act come into play after discharging the initial burden of proof by the prosecution; iii) that the learned Appellate Court erred in holding that the cheque in question was issued in discharge of any debt or liability and, as such, the judgment impugned being otherwise bad in law, is liable to be set aside;;