BIJAN BEHARI DEB Vs. MD. MOSOBBIR ALI

JUDGEMENT

(1.) This is an appeal under Sec. 378(4) of the Cr.P.C. from the judgment and order of acquittal dtd. 25/2/2017 delivered in CR 09 (NI)/2015 from the accusation under Sec. 138 of Negotiable Instrument Act, 1881, hereinafter referred to as NI Act.

(2.) The appellant instituted a complaint under Sec. 138 of the NI Act as the cheque issued by the respondent No.1 bearing No.252575 dtd. 28/1/2015 drawn on SBI, Kailashahar Branch for an amount of Rs.40,000.00 was dishonoured for insufficiency of fund. It is evident from the records that the cheque was returned by the memorandum dtd. 28/1/2015 (Exbt.2). Despite the demand for payment of the cheque-amount, the respondent No.1 (the accused) did not pay the said amount within the statutory limit. On the contrary, in reply to the demand notice dtd. 6/2/2015 (Exbt.6) the accused the respondent No.1 has asserted that since the accused had business relation with the complainant (the appellant) and he used to cheque as and when, the accused had no cash. But, he used to take back those cheques by making payment in cash. The last time, as the accused recorded in his reply (Exbt.7), he took some materials from the complainant by issuing a cheque and subsequently he paid the full amount and requested the complainant to return his cheque in presence of witnesses. But he did not return the cheque and asked the accused to come on subsequent date. But, in the reply, he has also asked the complainant to send the list of articles which was purchased by the accused within 15 days.

(3.) The complainant, without entering into the proposed arrangement he filed the complaint being Cr.09(NI)/2015 in the court of the Chief Judicial Magistrate, Kailashahar. The complainant adduced as many as two witnesses including himself (PWs1 and 2) and produced 7 documentary evidence including the dishonoured cheque (Exbt.1), the postal receipt (Exbt.5) etc. After recording of the complainant's evidence, the accused was examined under Sec. 313 of the Cr.P.C when he had categorically stated that he had issued the cheque but he did not purchase any material from the shop of the complainant. He has further clarified that he had issued the cheque to the complainant as the advance payment for purchase of two costly drums and paid the price but the complainant did not return the cheques. Afterwards, to rebut the evidence of the complainant, the accused adduced 3 (three) witnesses including himself (DW1) but no documentary evidence has been introduced by him. After appreciating the evidence, the Judicial Magistrate 1st Class, Kailashahar, Unakoti District to which court the said complaint was transferred for trial had acquitted the accused from the acquisition of failure of making payment of the amount, mentioned in the dishonoured cheque, despite observance of the process.