Indrajit Chatterjee, J. - (1.) I am hearing this appeal as against the judgment and order of acquittal as passed by the learned Judicial Magistrate, Baruipur, South 24 Parganas in Complaint Case No. 435 of 2006 disposed of by that Court on 22nd April, 2008 in which the learned Trial Court was pleased to acquit the present respondent in respect of the charge under Section 138 of Negotiable Instruments Act.
(2.) THE case before the Trial Court for the purpose of appreciation of this appeal can be stated in brief thus: "The complainant, the present appellant came up with a case before the Additional Chief Judicial Magistrate, Baruipur (transferred to the Trial Court) against the present respondent under Section 138 of the N.I. Act and disclosed in the complaint that on 19th July, 2005 the accused took Rs. 40,000/ - from the complainant as loan and in discharge of his liability he repaid the said loan on 19th July, 2005 by issuing a post dated account payee cheque in favour of the complainant to the tune of Rs. 40,000/ - being cheque No. 295461 dated 7th December, 2005 on Gorghara Branch, Allahabad Bank, District 24 Parganas (South) and at the same time the accused executed a document dated 19th July, 2005 admitting the said receipt of the amount and issuance of the aforesaid cheque the accused undertook to repay the said amount along with 2% interest per month on the principal amount and that on 8th April, 2006 when the cheque was presented by the complainant to his banker namely, United Bank of India on 19th April, 2006 the complainant was informed vide Bank Memo dated 11th April, 2006 that the cheque was dishonoured with the remark "insufficient fund". Thereafter, demand notice was issued by the complainant through his advocate by registered post with A/D asking him to repay the loan amount within the stipulated time. The said notice was received on 26th April, 2006 by the wife of the accused. But in spite of its receipt the accused did not pay any amount and as such the complaint was filed. The accused appeared in the case before the learned Trial Court when he was examined under Section 251 of the Cr. P.C. in respect of the charge under Section 138 of the N.I. Act to which the accused pleaded not guilty and claimed to be tried. Before the Trial Court on behalf of the complainant the complainant examined himself as P.W.1 and on behalf of the defence the defendant did not face the dock. The defence made out a case at the time of trial when he was examined under Section 313 of the Cr.P.C. and when P.W.1 being examined that he did not take Rs. 40,000/ - from the complainant. But in fact he took Rs. 5000/ - and for the said amount he was paying interest at the rate of 10% per annum and when he went to the complainant to demand Rs. 3000/ - for admission of his daughter, the complainant asked him to issue a cheque 5 times of the said amount. The defence also made out a case that when the accused was ready to repay the amount the complainant asked him to give a fresh cheque and he did not give it out of fear." Before the Trial Court affidavit -in -chief was marked as Exbt.1; cheque was marked as Exbt.2; bank memo was marked as Exbt.3; alleged chuktipatra written and signed by the present accused was marked as Exbt.4 and A/D along with postal receipt was marked as Exbt.5. The copy of the legal notice was also marked as Exbt.4 but it would have been marked as Exbt.6. On behalf of the defence no documentary evidence was adduced. After trial the learned Trial Court as I have told was pleased to acquit the accused on the ground that the complainant being one money -lender cannot get any protection under Section 138 of the N.I. Act.
(3.) AT the time of hearing of the argument, it was submitted by the learned Advocate appearing on behalf of the appellant that all the ingredients of Section 138 of the N.I. Act was fulfilled through evidence both oral and documentary and, as such the order of acquittal be reversed and substantive sentence be imposed on the accused respondent including the amount of compensation under Section 357 of the Cr.P.C. to suitably compensate the appellant.;