MAGMA LEASING LIMITED Vs. ASIM MONDAL

JUDGEMENT

(1.) This is an appeal filed with a prayer for special leave to appeal under Sec. 378 (4) of the Code of criminal Procedure filed by the appellant against the judgement and order of acquittal dtd. 15/3/2006 passed in criminal appeal no. 28 of 2005 by the Learned 6th Fast Track Judge, Calcutta reversing the order of conviction and sentence passed in case of C/298 of 2003 by Learned Metropolitan Magistrate, 13th Court, Calcutta from the charge under Sec. 138 of Negotiable Instruments Act.

(2.) The fact of the case in brief is that a complaint was lodged before the Court of Learned Chief Metropolitan Magistrate at Kolkata under Sec. 200 Cr.P.C against the present respondent alleging that, in discharge of existing liabilities or legal debt in part, the accused person issued 7 number of cheques in favour of the complainant and gave the details of the same in the petition of complaint which were deposited on 25/11/2002 for encashment to its banker UBI, Park Street Branch but those cheques were dishonoured and returned unencashed with the ground 'exceeds arrangement' by return memo dtd. 26/11/2002. Such information of dishonour was intimated to the petitioner company by the banker on 28/11/2002, was duly communicated to the accused person by demand notice dtd. 4/12/2002 through the Senior Manager (Legal) of the complainant Company through registered post with A/D as well as Speed Post calling upon the accused to effect payment of the total amount within 15 days from the date of receipt of the said notice in default appropriate proceedings under Sec. 138 of NI Act will be initiated against him. The said demand notice was returned to the appellant with the remark "not known" on 7/12/2002 and it was received on 10/12/2002.

(3.) The complaint was lodged within a month from such date as the appellant apprehended that the aforesaid misdeed of accused person is deliberate, intentional and mala fide and with an ulterior motives to devoid the appellant. On the basis of such complaint the case was transferred by the Chief Metropolitan Magistrate to the Learned Metropolitan Magistrate 13th Court, Calcutta and the said Court on consideration of the evidence of three prosecution witnesses and after hearing the arguments found the accused guilty and passed the order of conviction and sentence to suffer S.I. for T.R.C and to pay a fine of Rs.20,000.00 out of which Rs.18,000.00 to be paid to the complainant as compensation in default for imprisonment for six months. Being aggrieved by the said judgement and order of conviction and appeal was preferred by the present respondent before the Court of Learned Chief Judge, City Sessions Court which was subsequently heard by the Learned Court of Additional Session Judge, 6th Fast Tract Court, Bichar Bhavan, Calcutta.