Indrajit Chatterjee,J. - (1.) This Court is hearing this appeal as against the judgement and order dated 28-08-2007 passed by the learned Additional Sessions Judge, Barrackpore, North 24-Parganas, in Criminal Appeal No. 2 of 2007 vide which the order of conviction as passed by the learned Judicial Magistrate, 5th Court, Barrackpore, North 24-Parganas, on 26.04.2007 as passed in Complaint Case No.583 of 2003 was reversed from an order of conviction to an order of acquittal.
(2.) It may be mentioned that the learned Trial court vide the impugned judgment convicted the present accused/respondent in respect of the charge punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called as the Act of 1881) and sentenced him to suffer rigorous imprisonment for one year and directed to pay fine of Rs.2,60,000/- (rupees two lakhs sixty thousand) which will go to the complainant and in default the said convict was directed to undergo further R.I for one year.
(3.) The fact relevant for the purpose of adjudication of this appeal can be stated in brief thus: That the complainant was a Section Engineer at Kanchrapara Railway Workshop and the accused was his junior. During their days of service, the present opposite party/accused expressed his desire to sell out his premises and the complainant/appellant intended to purchase the same. There was an agreement for sale dated 30th Chaitra, 1409 B.S. and the price for the said land was fixed Rs.4,00,000/- and the complainant paid an advance of Rs.1,00,000/- towards the earnest money and the balance was scheduled to be paid within six months at the time of registration. After the execution of the said agreement, the accused failed to hand over his title deeds despite request by the complainant. Thus, the agreement to sale failed and the complainant demanded that the accused should pay him back the earnest money along with interest and damages thereof. In view of such request, the accused on 22-07-2003 gave the complainant one cheque (Ext.2) covering an amount of Rs.1,30,000/- bearing No. 142721 dated 22-07-2003 drawn on UCO Bank, Kanchrapara Branch, with a request to place the cheque for encashment on or after 01-09-2003. The cheque was deposited by the complainant/appellant to his banker, i.e. State of India, Kanchrapara Brach on 01-09-2003 this after four and half month of payment of the advance. The said cheque was dishonoured with the remarks 'insufficient founds' and as such, one legal notice was issued under the provisions of the Act of 1881, which was duly accepted by the opposite party/accused and he was replied the same which was marked as Exbt. 5 before the learned trial court wherein his Advocate informed this appellant/complainant that no such cheque was issued at all and as such, the accused/opposite party asked the complainant/appellant not to proceed with this matter.;