SUBRATA MITRA Vs. ALPANA DAS

JUDGEMENT

(1.) The present appeal has been directed against the judgment and order dated January, 15th 2019 passed by Metropolitan Magistrate, 9th Court in Complaint Case no. 7232 of 2010. By the impugned judgment, learned Court below was pleased to dismiss the complaint and thereby acquitted the accused person under sec. 255 (1) of Cr.P.C. in a proceeding under sec. 138 of Negotiable Instrument Act, 1881( in short N.I. Act).

(2.) The complainant's case in brief is that the complainant/appellant herein is a government employee under the state of West Bengal and was posted at Malda District Hospital in the year 2007-2008. The accused person/opposite party no.1 herein was colleague of the petitioner herein at Malda District hospital, who asked for some financial help for her personal needs. Pursuant to such request, the appellant herein had extended financial help to the accused/opposite party to the tune of Rs.5.00 lakhs and the opposite party no.1 accused assured to pay entire due amount by December, 2009. In discharge of her legally enforceable debt and liability, she issued the impugned cheque being no. 989003 dtd. 26/12/2009 for a sum of Rs.5.00 lakhs drawn on Uco Bank. When the complainant presented the said cheque to his banker, it got dishonoured on 1/1/2010 on the ground of "insufficient fund". Thereafter appellant herein sent legal notice on 27/1/2010. The said notice was received by the opposite party no.1/ accused on 2/2/2010 and even after receipt of such notice the opposite party no.1 did not take any step to pay the legally enforceable debt to the appellant which compelled the complainant to lodge the above mentioned complaint case no. 7232 of 2010. During trial the appellant was examined and cross examined and on the other hand the accused was also examined under sec. 313 of the Code of Criminal Procedure.

(3.) Though, the accused stated that he would produce witness in support of her defence during examination under sec. 313 Cr.P.C., but she did not examine any witness on her behalf. Learned Trial judge after considering the documentary as well as oral evidence was pleased to acquit the opposite party no. 1/accused by the impugned judgment dtd. 15/1/2019 from the charges under sec. 138 of the N.I. Act. mainly on the ground that complainant lacked capacity to give loan, which makes the debt not legally enforceable.