RAMPRASAD SAHA Vs. KAMAL KUMAR TALUKDAR

JUDGEMENT

(1.) The instant revision application arises out of the judgment and order passed by the learned Additional Sessions Judge, Alipurduar on 4.7.01 in Criminal Appeal No. 2 of 1999(A). By the impugned judgment and order the learned Additional Sessions Judge, Alipurduar dismissed the criminal appeal preferred by the present petitioner as appellant and affirmed the judgment and order passed by the SDJM, Alipurduar on 27.8.99 in C.R. Case No. 506/97 whereby the learned SDJM found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him of the said offence and sentenced him to suffer Rigorous Imprisonment for three months and to pay fine of Rs. 72,000/- in default to suffer further Rigorous Imprisonment for three months.

(2.) The facts anteior to filing of the instant revision application may succinctly be stated thus. On 19.12.97 the complainant Kamal Kumar Talukdar presently O.P. No. 1 lodged a petition of complaint under section 138 of the Negotiable Instruments Act, hereinafter referred to as the Act, alleging that the accused Ramprasad Saha presently the petitioner purchased some commodities from the shop of the complainant on 22.4.97 and price of the commodities so purchased was Rs. 38,552/-. As alleged by the complainant, the accused paid Rs. 2552/- in cash and issued a post dated cheque for the balance of Rs. 36,000/- in favour of the complainant drawn on Uttarbanga Keshetriya Gramin Bank, Totopara Branch. The cheque is alleged to have been handed over by the accused to the complaint on 22.4.97 but it was dated 21.10.97. The complainant presented the said cheque at Central Bank of India, Coochbehar Branch but the same was dishonoured on the ground of insufficiency of fund in the Bank account of the accused. Thereupon the complainant served a notice under section 138 of the Act through his advocate on the accused by registered post demanding payment of Rs. 36,000/-. Inspite of receipt of that notice the accused failed to pay the said amount.

(3.) After service of summons the accused appeared in the trial Court and was examined under section 251 of the Code of Criminal Procedure. The accused pleaded not guilty to the accusation whereupon the trial proceeded. On conclusion of the trial the learned trial Court found the accused guilty of the offence punishable under section 138 of the Act, convicted and sentenced him in the manner as already stated. On appeal preferred by the present petitioner as appellant the learned Additional Sessions Judge, Alipurduar upheld the order of conviction and sentence passed by the learned trial Court against the accused and dismissed the appeal whereupon the instant revision application has been preferred by the present petitioner assailing the findings of both the learned trial Court and the learned Appellate Court. The petitioner has alleged inter alia that the present O.P. No. 1 had no cause of action to file the complaint under section 138 of the Act in view of the fact that the petitioner paid Rs. 36,000/- by cash on 26.11.97 which was within fifteen days from the date of receipt of the demand notice from the advocate of O.P. No. 1/complainant and O.P. No. 1 granted receipt in acknowledgement of the debt accrued due to bouncing of the cheque issued by the petitioner. It has been further alleged by the petitioner that the learned Sub-Division Judicial Magistrate has no power to impose fine exceeding Rs. 5,000/- on the accused but he has imposed a fine of Rs. 72,000/- and the learned Appellate Court being Additional Sessions Judge confirmed it which is absolutely without jurisdiction and cannot be sustained in law.