ARUNAVA BHATTACHARYA Vs. SK.JAMSHED ALI

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure challenging the order passed by learned Session Judge, Hooghly in criminal appeal no. 18 of 2015 arising out of CR case No. 256 of 2006 under Section 138 of the Negotiable Instrument Act whereby and where under learned Sessions Judge has affirmed the conviction and sentence awarded against the appellant by learned Judicial Magistrate, 5th Court, Hooghly in CR no. 256 of 2006.

(2.) The fact of the case is that the appellant issued a cheque of Rs. 1,50,000/- in favour of the complainant but the said cheque was dishonoured on presentation on the ground that the account was closed by the appellant. Notice was duly served upon the appellant but no reply was given by the appellant against the said notice. Thereafter, a petition of complaint was filed under Section 138 of the Negotiable Instrument Act and after completion of trial learned Sessions Judge convicted the appellant for the offence under Section 138 of the Negotiable Instrument Act and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 3,00000/- in default to suffer simple imprisonment for another six months. Learned Advocate appearing on behalf of the appellant contended that there was no existing liability at the time of alleged issuance of cheque by the appellant and in fact a blank cheque was handed over to the complainant by the appellant as a co-lateral security. Secondly, the appellant never signed on the cheque and learned trial Court without adhering to the specific plea of the appellant and without examining the cheque with the help of handwriting expert erroneously came to a finding that the cheque was actually issued by the appellant. It is further submitted that the first appellate Court did not consider the evidence on record inadvertently and did not come to a specific finding after evaluation of the evidence on record and accordingly the judgment passed by learned appellate Court ought to be set aside. Mr. Chatterjee, learned Advocate appearing on behalf of the appellant contended that pursuant to the direction given by this Court Rs. 1,50,000/- has already been deposited in the trial Court by the appellant. In support of his contention learned Advocate appearing on behalf of the appellant has relied on the following decisions:-

(3.) Learned Advocate appearing on behalf of the opposite party no. 2 contended that the complainant duly proved the existing liability of the appellant at the time of issuance of the cheque and that the appellant has admitted that the cheque was issued by him during trial. It is submitted that there was absolutely no scope of sending the cheque for examination by the handwriting expert in view of such specific admission of the appellant and that learned trial Court duly considered the facts and circumstances of the case after evaluating the evidence on record and accordingly it cannot be said that the judgment of the learned Appellate Court is not in accordance with law.