- (1.) THIS appeal is filed by the petitioner/complainant challenging the judgment and order of acquittal passed on 26-09-2006 by learned Judicial Magistrate, 1st Court, Jalpaiguri in C.R. No.216 of 2005 (TR No.2978 of 2005) in a proceeding under Section 138 of the Negotiable Instrument Act. The fact of the present case is that the complainant gave a loan of Rs.30,000/- to the opposite party No.2 against a written document. On several requests/demands for payment of the loan amount the opposite party No.2/accused failed to pay the said loan amount and on 04-04-2005 the O.P. No.2 issued a cheque bearing No.896239 amounting or Rs.30,000/- in favour of the complainant drawn on State Bank of India, Jalpaiguri Branch. The complainant presented the said cheque for encashment to his Banker i.e. U.C.O. Bank of India, Jalpaiguri Branch on 03-05-2005. But the same was returned with a reminder of insufficient fund. Thereafter, the complainant gave a notice to the accused through the lawyer on 14-05-2005 by a registered post with A/D demanding the pay to entire cheque amount within 15 days from the date of receipt of the said notice. The accused received the said demand notice on 18- 05-2005 but failed to pay the entire cheque amount within statutory period of 15 days. Thereafter, the complainant was compelled to file the present case i.e. C.R. 216 of 2005 under Section 138 of N.I. Act against the accused and the learned Magistrate after taking cognizance of the offence issued the summons against the accused who was released on bail and stood for trial. The accused was examined under Section 251 of the Cr.P.C. and pleaded not guilty and claimed to be trial.
(2.) DURING the trial the complainant produced three witnesses including himself i.e. Ranada Dutta (P.W.I), Khagendranath Biswas (P.W.2) and Pranab Sen Roy (P.W.3). In course of trial some documents were marked as Exhibit i.e. postal receipt (Exbt. 1), A/D card (Exbt. 2), deposit slit of U.C.O. Bank (Exbt. 3), memo of objection of U.C.O. Bank (Exbt.4) and cheque bearing No. 896239 (Exbt. 5). The learned Judicial Magistrate after scrutinizing the evidence of the prosecution and after considering the statement of learned Advocates of both sides acquitted the accused/O.P. No.2 from the offence under Section 138 of the N.I. Act. Being aggrieved and dissatisfied against the said judgment and order of acquittal the petitioner/complainant has preferred the present appeal. Mr. Mitra, learned Advocate, appearing on behalf of the petitioner, pointed out that the learned Magistrate failed to consider the presumption as laid down in Section 139 of the N.I. Act. Mr. Mitra also pointed out that the learned Magistrate failed to consider the relevant provision of Section 94 of the N.I. Act when it was complied by the petitioner. Mr. Mitra also pointed out that the learned Magistrate failed to consider the relevant provision of Section 58 of the Evidence Act when the service of the notice was admitted by the O.P. No.2. Mr. Mitra also pointed out that the learned Magistrate failed to consider the relevant provision of Section 114(f) of the Evidence Act. Mr. Mitra pointed out that when there was the admission for the notice by the accused at the time of examination of the accused under Section 313 of the Cr.P.C. then there was no scope to disbelieve the same. In view of the above facts the judgment and order of acquittal passed by the learned Judicial Magistrate, is liable to be set aside and necessary order should be passed by this Court. Ms. Goswami, learned Advocate, appearing on behalf of the State O.P. No.l, pointed out that there is no ambiguity in the judgment and order of acquittal of learned Judicial Magistrate and as such the present appeal is liable to disnaissed.
(3.) MS . Goswami also pointed out that the learned Judicial Magistrate discussed the relevant provision of Section 4 of the Evidence Act on "presumption" by the learned Court and the order of acquittal cannot be altered by this appeal. The present appeal is liable to be dismissed. No one appears on behalf of the O.P. No.2. It appears from the record that the notice was duly been served upon O.P. No.2.;