YUNUS KHAN Vs. MAZHAR KHAN

JUDGEMENT

(1.) This revision is directed against the judgment and order dated 4.1.1997, passed by the learned Addl Sessions Judge, Dibrugarh, in Criminal Appeal No. 18 (4) of 1996, allowing the appeal and setting aside the judgment and order dated 11.9.1996, passed by the learned Judicial Magistrate, 1st Class, Dibrugarh, in CR Case No.2526c of 1990, convicting the accused-opposite party under section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as the NI Act) and sentencing him to suffer imprisonment for 6 months and pay a fine of Rs.5,000/- (Rupees five thousand) and, in default, suffer imprisonment for a further period of 6 months.

(2.) Heard Mr. GN Sahewalla, learned senior counsel, assisted by Mr. A. Jalan, learned counsel, appearing for the complainant-petitioner. None has appeared on behalf of the accused-opposite party.

(3.) The material facts giving rise to this revision may, in brief, be set out as follows : (i) A written complaint was filed on 11.10.1993, in the Court of learned Judicial Magistrate, 1st Class, Dibrugarh, by the complainant-petitioner, his case being, in brief, thus : The accused-opposite party took a loan of Rs.40,000 from the complainant-petitioner on the strength of a hand note (Promissory Note) executed by the accused-opposite party. When the complainant demanded repayment of the said loan amount, the accused issued a cheque for the said amount on 10.4.1993. The said cheque, on being presented by the complainant, was dishonoured by the Bank concerned on 10.4.1993, with the remark, 'Insufficient fund'. The complainant accordingly informed the accused about the cheque having been dishonoured by the Bank. The accused advised the complainant to present the cheque during the last part of September, 1993; but when the cheque was so presented, the Bank refused to honour the cheque with the remark 'Insufficient Balance'. The complainant, then, issued a notice hi terms of section 138 of the NI Act and the notice was served on the accused on 29.9.93. As even after receipt of the notice, the accused failed to make payment of the said amount to the complainant, the complainant lodged the complaint, as mentioned herein before on 11.10.93. (ii) In course of time, the accused faced the trial, which ended in his conviction and sentence, as mentioned herein above, was passed against him. Aggrieved by the conviction and sentence so passed against him, the accused preferred the appeal, which was registered as Criminal Appeal No. 18(4) of 1996 aforementioned. Since the appeal was allowed as indicated herein above, the complainant has now, approached this Court with the present revision.