Joymalya Bagchi, J. - (1.) THE appeal is directed against the judgment and order dated 21.05.2004 passed by the learned Sub -Divisional Judicial Magistrate, Hooghly (Sadar) acquitting the respondent from the accusation of committing offence punishable under Section 138 of the Negotiable Instrument Act.
(2.) THE prosecution case against the respondent is to the effect that the respondent took a loan of Rs. 15,000/ - from the appellant and thereafter in discharge of such liability issued a cheque dated 19.09.2002 for a sum of Rs. 15,000/ - in favour of the appellant bearing cheque No. 323368 drawn on State Bank of India, Nimtala Branch. The cheque on presentation was returned unpaid due to insufficiency of fund and such dishonour was communicated to the appellant on 07.10.2002. The appellant issued a notice to the respondent on 08.10.2002 at his address as well as to Hooghly Correctional Home as the respondent was detained there at that material point of time. On 09.10.2002 the respondent received such notice but he did not make payment. Hence the present complaint. Plea of the respondent was recorded under Section 251 of the Code of Criminal Procedure. The respondent pleaded "not guilty" and claimed to be tried. In course of trial the appellant examined himself as PW -1. The defence of the respondent was one of innocence and false implication. He however did not examine any witness in his favour. In conclusion of trial, the trial Court by judgment and order dated 21.05.2004 acquitted the respondent of the accusation levelled against him, inter alia, on the ground that the demand notice was imperfect and not in accordance with law.
(3.) MR . Ghosh and Mr. Choudhury, learned counsels appearing for the appellant submitted that the Trial Judge erred in law in acquitting the appellant. They further submitted that it has been proved beyond doubt that the respondent had issued the cheque and the same was returned unpaid due to insufficiency of fund. The notice of dishonour was also served upon the respondent. In spite of the same, the payment was not made. It was also submitted that the trial Court erred in law in coming to the finding that the notice of dishonour was imperfect. Accordingly, they prayed for setting aside the order of acquittal and conviction and sentence of the appellant in respect of the accusation levelled against him.;