SK. SAHEDUL ISLAM Vs. ARABINDO MAKAR

JUDGEMENT

(1.) The instant application has been preferred by the petitioner(Convict) challenging the judgment and order dtd. 2/4/2019 passed by the learned Additional Sessions Judge, 2nd Court Serampore in Criminal Appeal no. 7 of 2016. By the impugned judgment, court below dismissed the appeal and has affirmed the judgment and order dtd. 11/3/2016 passed by learned Judicial Magistrate 4th Court Serampore in CR case no. 276 of 2013 by which the petitioner herein was convicted for commission of offence punishable under Sec. 138 of the Negotiable Instrument Act, (in short N.I. Act) and was sentenced to suffer simply imprisonment for a term of four months and also to pay fine of Rs.12,50,000.00.

(2.) The fact which led to the aforesaid criminal proceeding is to the effect that opposite party no.1 is the business man who is carrying on business under the name and style "Tarama Stores". The petitioner herein carried on his business in the name of Pallishree Bakery who purchased goods on credit from the complainant from February 2012 to August 2012, against credit invoices and challans. The complainant's specific case is that towards discharge of outstanding liability, the petitioner issued a cheque bearing cheque no. 045012 dtd. 1/3/2013 for Rs.10,03,559.00 drawn on United Bank of India. On presentation, the said cheque was dishonoured on 2/3/2013 with the endorsement "no such account". The opposite party no.2/ complainant issued a demand notice on 12/3/2013 upon the petitioner, which was duly served on him on 16/3/2013, but no payment was made within the statutory period, in terms of said notice

(3.) In the course of trial the complainant adduced the evidence of himself as PW-1 and proved 28 (Twenty eight) original invoice and challans with regard to which the payment was due, which are marked as exhibit 1 series. He has also filed and proved original impugned cheque deposits slips and cheque return memo which are marked as exhibit 2, 3 and 4 and the copy of demand notice sent to the petitioner and the postal receipt and A/D Card are marked as exhibit 5 and 6. On perusal of the judgment of the trial court, it appears that when the complainant proved 28 original invoice and challan with regard to which the payment was due, the petitioner herein as accused did not raise any objection. The Trial court below specifically observed that the suggestion put by the petitioner herein that accused did not issue any cheque in favour of complainant is self contradictory to the suggestion that complainant received a blank cheque from the accused. Moreover defence adduced no positive evidence to disprove his signature in the impugned cheque. The relevant portion of the judgment of the Trial Court may be reproduced below:-