- (1.) The challenge in this appeal is to the judgment and order dated 14.7.2009 passed by the learned Chief Judicial Magistrate, North, 24-Paraganas, Barasat in C.763 of 2006 thereby acquitting the respondent no.2 Nishikanta Saha from the charge under Section 138 of the N. I. Act.
(2.) The appellant, Nikhil Chandra Mitra lodged the complaint in the Court and had initiated the case against the respondent no.2 under Section 138 of the Negotiable Instrument Act. The judgment impugned has been assailed, mainly, on the following grounds; a) that the learned Magistrate erred entirely that the presumption can be drawn adversely against the holder of the cheque; b) that the learned Court failed to appreciate the facts and circumstances of the case and the evidence in its true and proper perspective; c) that the learned Court wrongly shifted the onus to prove on the appellant; d) that the learned Court failed to give the appellant an opportunity to produce the documents which he wanted to file in course of trial in support of his case; e) that the judgment impugned being otherwise bad in law, is liable to be set aside.
(3.) The appellant, Nikhil Chandra Mitra lodged a complaint before the learned Magistrate alleging therein that both he and the respondent no.2 had business transaction with each other. The appellant supplied rice to the respondent no.2 who in discharge of said liability in part, issued two account payee cheques bearing No.713701 dated 6.3.2006 of Rs.6 lakhs and cheque bearing No.562670 dated 29.3.2996 of Rs.2 lakhs. The said cheques were presented by the appellant in his Bank U.T.I. Bank Ltd., Baguihati Branch within the valid period. Both the cheques were returned dishonoured with remarks "excess arrangement" and "full cover not received". The cheques were returned by return memo dated 7.3.2006 and 4.7.2006, respectively.;