KAMALA S. Vs. VIDHYADHARAN M.J.

JUDGEMENT

(1.) - The judgment and order dated 31.01.2011 passed by the Additional District and Sessions Judge, Fast Track Court, Tehatta, Nadia in Criminal Appeal No. 11 of 2010 affirming judgment and order dated 17.05.2010 passed by the learned Judicial Magistrate, 1st Class, Tehatta, Nadia in Case No. 95C of 2005 (TR 243 of 2005) convicting the petitioner for commission of offence punishable under Sec. 138 of the Negotiable Instruments Act and directing him to pay a fine of Rs.10,000.00, in default, to suffer simple imprisonment for one month and further directing him to pay compensation of Rs. 50,000.00, in default to execute the same in accordance with law, has been challenged.

(2.) The prosecution case is that the opposite party no. 1/ complainant carries on a business in brick kiln; the petitioner purchased bricks to the tune of Rs.40,000.00; as a sale consideration thereof, the petitioner issued a cheque of Rs. 40,000.00dated 30.10.2004 (subsequently altered to 30.12.04); on presentation of the cheque before the Bank on 07.02.2005, it was returned unpaid due to insufficient fund; upon demand notice being served upon the petitioner, such amount was not paid. Hence a complaint was filed against him for commission of offence punishable under Sec. 138 of the Negotiable Instruments Act. In course of trial, opposite party no. 1 examined himself and another and a number of documents were exhibited. The petitioner, however, did not adduce any evidence. In conclusion of trial, the learned Magistrate convicted the petitioner for commission of offence punishable under Sec. 138 of the Negotiable Instruments Act and directed him to pay fine of Rs. 10,000.00, in default, to suffer simple imprisonment for one month and also to pay compensation of Rs. 50,000.00. The petitioner appealed against the said judgment and order of conviction and sentence being Criminal Appeal No. 11 of 2010. The learned Additional District and Sessions Judge, Fast Track Court, Tehatta, Nadia, by the impugned judgment and order dated 31.01.2011 dismissed the appeal and affirmed the judgment and order of conviction and sentence.

(3.) Mr. Biswas, learned counsel for the petitioner submits that the learned Court erred in law in failing to appreciate that the petitioner rebutted the presumption under Sec. 139 of the Negotiable Instruments Act. He submits that no documentary evidence was adduced with regard to supply of bricks in the instant case. It is his specific case that the date of the cheque had been tampered with, which clearly casts a cloud over the transaction in question. Mr. Biswas, learned counsel for the petitioner, relies on the following decisions.