Indrajit Chatterjee, J. - (1.) THIS appeal has been directed as against the judgment and order of acquittal 28.06.13 passed by the Judicial Magistrate, 4th Court cum Railway Magistrate, Sealdah in Complaint Case No. C/87/11 under Section 138 of the N.I. Act in which he was pleased to acquit the accused in respect of the charge.
(2.) THE case before the Trial Court can be summarized thus; - "That the complainant of this case who is the appellant before this Court is the proprietor of "Fin Trust Financial Services" and the present respondent is a relation of the complainant. This respondent was the accused before the Trial Court who approached the complainant for some accommodation load as he was a need of urgent money and the complainant agreed to give the personal loan to the said accused. It was agreed that the loan would be repaid by issuing cross cheques. This accused gave one cheque of Rs. 50,000/ - being cheque No. 316567 dated 30.09.2010. drawn on Canara Bank, Salt Lake City Branch, Kolkata -700106 and assured the complainant that the cheque would be duly honoured. The cheque was presented before the Bank of Baroda, Belghoria Branch on 11.11.2010 but the said cheque returned with the mark "Fund Insufficient" vide memo dated 12.11.2010. On receipt of this accused was served with a demand notice and on receipt of such demand notice the accused did not care to make payment to the complainant -appellant and as such the complaint under Section 138 of the Negotiable Instruments Act, 1881(hereinafter referred to as the said act) was filed. The case was transferred to the present Trial Court after cognizance was taken by the filing Court. The accused was examined under Section 251 of the Cr. P.C. in respect of the charge under Section 138 of the said Act to which the accused pleaded not guilty and claimed to be tried. Therefore the trial started." To prove the case of the complainant -appellant before the Trial Court one witness Sanjib Kumar Ghosh was examined as PW I and through his evidence four documents were proved namely (1) a cheque, (2) bank return memo, (3) photocopy of the demand notice and (4) A/D Card.
(3.) THE accused did not face the dock. On his behalf one sheet of paper written by the complainant was marked as Exbt. A. The accused was examined under Section 313 of the Cr. P.C. The case as made out by the accused before the Trial Court was that he issued the cheque but did not do so in discharge of existing liability. The accused did not deny that he did not issue the said cheque or that he did not receive any demand notice. The learned Trial Court in its judgment acquitted the accused only on the ground that Exbt. 4 did not bear any postal stamp and that Exbt. 3 was a photocopy of the demand notice. Regarding other aspect of the claim, the learned Trial Court held that "from the above analysis I have strong reservation to accept the claim of the defence that complainant is a professional money lender". (Internal Page No. 7 of the judgment).;