SHIBU CHAKRABORTY Vs. ARATI PODDAR & ANR.

JUDGEMENT

(1.) Special Leave to appeal under Sec. 378(4) of the Code of Criminal Procedure was granted by S.P. Rajkhowa, J on December 9, 1993. None appears for the Appellant. Mr. Biplab Mitra, learned Advocate, present in court asked for passing over of this matter on behalf of Mr. Chaitanya Mukherjee, learned Advocate for the petitioner in this case, as instructed by this clerk. I waited for the Counsel for Appellant for half an hour. Nobody has come. Mr. Sandip Ghoshal appears for the opposite parties.

(2.) This appeal is directed against the judgment and order of acquittal dated 24.9.93 passed in favour of opposite parties by 15th Court of Metropolitan Magistrate, Calcutta, presided over by N. Mondal. The case had been started against Smt. Arati Poddar by the present appellant Shibu Chakraborty on a complaint of an offence under Sec. 138 of the Negotiable Instruments Act, which has been committed by the opposite party No. 1 in so far as she issued an Account Payee Cheque of Rs. 25,000/ - (Rupees Twenty -five thousand only) on 15.12.1989 in favour of the complainant/appellant, for consideration. The cheque when presented was dishonoured twice. It was a cheque drawn on United Bank of India, Sealdah Branch, Calcutta and had been presented by petitioner through his banker Allahabad Bank, Beadon Street Branch, Calcutta. The appellant sent a demand notice dated 29.1.90 to the opposite party by registered post with acknowledgment due on 30th January, 1990 at her address. The' A/D was not returned. It was alleged that there were presumption of service of notice on the opposite party by 6th February, night. She did not pay and so offence was committed by non -payment of money on 21st February, night. The complaint dated 1st March, 1990 was filed by the appellant for offence under Sec. 138 of the Negotiable Instruments Act.

(3.) After appearance of the respondent/opposite party and trial of the case the learned Magistrate by impugned order acquitted, the accused/opposite party No. 1 on the ground that notice of demand was not proved to have been served on the opposite party No. 1