KUMAR EXPORTS Vs. SHARMA CARPETS

JUDGEMENT

(1.) - Order dated 23.02.2011 passed by learned Additional Sessions Judge, Paschim Medinipore in Criminal Appeal No.19 of 2010 affirming the judgment and order of conviction and sentence dated 03.07.2009 passed by learned Judicial Magistrate, 3rd Court, Paschim Medinipur in Case No.97 of 2007 has been challenged before me. The prosecution case is that the petitioner purchased electronic goods from the shop of the complainant M/s. Singh Electric Store, Golebazar, Kharagpur amounting to Rs. 5,44,850.00 on credit on 11.12.2006. On 18.12.2006 the petitioner issued a cheque bearing no. 781523 for Rs. 5,44,850.00 drawn on Punjab & Sind Bank, Kharagpur Branch in favour of complainants firm for repayment of such liability. The cheque on presentation was returned unpaid on 20.12.2006 with the remark "account closed". On 17.01.2007 a demand notice was served upon the petitioner who in spite of receipt of the same did not pay the said amount. Hence, the petition of complaint was filed.

(2.) In course of trial the opposite party no.2 examined himself as witness and exhibited a number of documents. The petitioner examined two witnesses including himself. It was the defence of the petitioner that no sale on credit or otherwise had taken place and the cheque in question had been stolen by the opposite party no.2 and was dishonestly presented for encashment. Learned Magistrate after analyzing the evidence on record, by judgment and order dated 12.04.2010 convicted the opposite party no.2 for commission of offence punishable under Sec. 138 of the Negotiable Instrument Act and sentenced her to suffer Simple Imprisonment for six months and to pay a fine of Rs. 5,60,000.00 only, in default, to undergo further Simple Imprisonment for two months again. The appellate court affirmed such judgment and order of conviction and sentence. Hence, the instant revisional application.

(3.) Mr. Debabrata Acharya, learned Advocate, appearing for the petitioner submits that the petitioner had rebutted the statutory presumption under Sec. 139 of the Negotiable Instrument Act. It is his specific case that the volume of transaction as alleged by the prosecution was disproportionate in view of the nature of the business conducted by the opposite party no.2 and that there was no documentary proof with regard thereto. He relied on a decision reported in (2009)1 C Cr LR (SC) 513, Kumar Exports Vs. Sharma Carpets in support of his contention.