T.NANDAKUMAR SINGH, J. - (1.) BY this appeal, the appellant-complainant is assailing the judgment and order dated 07. 09. 2006 passed by the learned Sub-Divisional Judicial Magistrate (M), Dhakuakhana passed in Case No. C. R. 306/2005, wherein and whereunder, the learned Sub-Divisional Judicial Magistrate (M) held that the appellant-complainant had failed to prove that the respondent-opposite party had committed the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NIA, 1881 ).
(2.) HEARD Mr. H. Sarma, learned counsel appearing for the appellant-complainant as well as Mr. P. J. Saikia, learned counsel for the respondent-opposite party. The factual panorama of the appellant-complainant's case in his complaint dated 19. 10. 2005 being Case No. C. R. 306/2005 against the respondent-opposite party under Section 138 of the NIA, 1881, is briefly recapitulated. The appellant-complainant Sri Bogan Oza sold his plot of land measuring four kathas covered by Dag No. 1152 of Patta No. 110 of Dhakuakhana Mouza at Konwar Ghahi Gaon map for Rs. 2,00,000/- to the respondent-opposite party Sri Lalitya Das under the sale agreement dated 23. 11. 2002 between the appellant-complainant and the respondent-opposite party. Pursuant to the said sale agreement, the respondent-opposite party had paid an amount of Rs. 1,00,000/- to the appellant-complainant on 23. 11. 2002 under a written agreement between the parties that the remaining amount of Rs. 1,00,000/- will be paid by the respondent-opposite party on the execution of the sale deed. Subsequently, the appellant-complainant received a sum of Rs. 25,000/- vide bearer cheque and Rs. 11,000/- in cash from the respondent-opposite party. As regards the remaining amount of Rs. 64,000/-, the respondent-opposite party issued a post dated cheque bearing No. 767451 on the date of registration of the sale deed i. e. on 07. 07. 2005, to be drawn at the Assam Co-operative Apex Bank, Dhakuakhana Branch on 11. 07. 2005. It is also the further case of the appellant-complainant that when he deposited the said post dated cheque at UBI, Dhakuakhana in his Account on 20. 07. 2005, the cheque was returned on 25. 07. 2005 with the Return Memo of Assam Co-operative Apex Bank, Dhakuakhana with reason No. II that "payment stopped by the drawer". Thereafter, the appellant-complainant approached the respondent-opposite party and went to the Bank on 02. 09. 2005 for depositing the said cheque and again the cheque was returned with the Return Memo for the same reason i. e. "payment stopped by the drawer". The appellant-complainant also served a Pleader's Notice dated 12. 09. 2005 to the respondent-opposite party but the respondent-opposite party did not respond in spite of receiving the said notice. Hence, the appellant-complainant filed a case being C. R. Case No. 306/2005 under Section 138 of the NIA, 1881 against the respondent-opposite party Lalitya Das and one Kamal Deka who was the then L. D. Assistant in the Office of the Sub-Registrar, Dhakuakhana in the Court of Sub-Divisional Judicial Magistrate (M), Dhakuakhana, Lakhimpur.
(3.) THE case of the respondent-opposite party as appeared from his statement under Section 313 Cr. P. C. is that on 07. 07. 2005 another agreement, which was exhibited by the respondent-opposite party during the course of the trial, was also executed between the appellant-claimant and the respondent-opposite party mentioning that the appellant-complainant would sell and deliver possession of his remaining part of the land measuring one katha six lechas to the respondent-opposite party within 11. 07. 2005 and for that purpose a cheque of Rs. 64,000/- as a value/price of the said land to be encashed on 11. 07. 2005 was issued by the respondent-opposite party in favour of the appellant-complainant. As the possession of the said land was not delivered to the respondent-opposite party within 11. 07. 2005, the respondent-opposite party instructed the concerned Bank to stop payment of the aforesaid cheque of Rs. 64,000/ -. It is also the further case of the respondent-opposite party that as the appellant-complainant failed to deliver the possession of the said land to the respondent-opposite party, he had instructed the Bank to stop payment of the said cheque though he had sufficient money in his Savings Account No. 2207/13 of the Assam Co-operative Apex Bank Ltd. at Dhakuakhana Branch.;