SHRI ANJELUS TOPNO Vs. SHRI SHREE KANTA SHARMA

JUDGEMENT

(1.) Heard Mr. P.J. Saikia, learned counsel for the appellant. Also heard Mr. P. Bora, learned counsel for the respondent.

(2.) This is an appeal against the judgment and order dated 23.07.2008 passed by the learned Additional Sessions Judge (FTC), Dibrugarh in Criminal Appeal No.35(4)/2007, setting aside the judgment and order dated 29.09.2007 passed by the learned Chief Judicial Magistrate, Dibrugarh in C.R. Case No.444C /2005 under Section 138 of the Negotiable Instruments Act, 1881 (in short, "N.I. Act"). The learned trial Court had sentenced the respondent to undergo simple imprisonment for a period of 1(one) month and to pay a fine of Rs.1,50,000/-, as compensation, to the complainant and in default, simple imprisonment for 6(six) months. The learned appellate Court, on appeal, set aside the impugned judgment and acquitted the respondent.

(3.) In the complaint petition filed by the appellant herein, it was stated that the respondent is a contractor and on 28.11.2002, he came to the house of the complainant and requested to advance him a sum of Rs.2,00,000/-, as he was in urgent need of money, promising and assuring him to pay Rs.2,35,000/- as soon as he receives the payment for contractual works undertaken by him. Accordingly, an agreement was executed on 28.11.2002 (Exhibit-1) and the appellant advanced Rs.2,00,000/-. However, the said amount was not paid inspite of repeated requests and only much later, on 17.10.2005, the respondent issued a cheque bearing No.323430 for Rs.1,00,000/-. The cheque being deposited was returned back for insufficient fund. A notice dated 02.11.2005 was served upon the complainant requesting him to make the payment of the cheque amount within 15(fifteen) days and the said notice was received on 10.11.2005. However, as the payment was not made, the complaint came to be filed.