- (1.) Being aggrieved by and dissatisfied with the judgement and order of acquittal dated 19.01.2009 passed by the learned J.M. Bidhannagar in T.R. No. 535/2007 arising out of C. Case No. 108/2007 appellant preferred the present appeal. 1. Shortly put the petitioner/appellant is that accused Dipankar Saha is the friend of the complainant / appellant Shubra Mitra. Accused is a reputed promoter and engaged in construction business. The petitioner disburse loan of Rs. 6,00,000/- (Rupees 3.5 lakhs by A/c. Payee cheque and Rs. 2.5 lakhs in cash) on 24th November, 2006 and agreed to refund the same within 31.12.2006.
(2.) An agreement to that effect was executed between the complainant and the accused person on 24.01.2006. Accused person failed to pay the aforesaid loan to the complainant within stipulated period finally accused Dipankar Saha, the opposite party issued an A/c. payee cheque of Rs. 3,50,000/- drawn on U.B.I. Baisakhi Branch, Salt Lake City on 27.01.2007 in discharge of his liability. The complainant presented the cheque in the month of May, 2007. On 18.05.2007 the said cheque was returned to the complainant by the banker with an endorsement that payment could not be made for insufficient fund. Thereafter complainant issued a demand notice calling upon the accused to pay the amount within 15 days accused receipt the notice that in spite of receiving the same accused did not pay any amount. Hence the prosecution case. Defence case as it appears from the trend of the cross-examination of the prosecution witness is that of absolute innocence and it was the specific defence of the accused Dipankar Saha that cheque in question was given to the complainant not for repayment of the loan but as a security for the said amount.
(3.) After examining the complainant a S.A. summon was issued upon the accused person. Accused was examined under Section 251 Cr.P.C. to which he pleaded not guilty and claimed to be tried. Now only point for consideration is whether the cheque in question was given to the appellant/complainant as a security or whether the judgement passed by the learned Court below is likely to be confirmed or not.;