KULDEEP SARMAH Vs. STATE OF ASSAM AND ANR

JUDGEMENT

(1.) This criminal revision petition is filed under Sections 397/401 of the Cr.PC, challenging the legality, propriety and correctness of the judgment and order, dated 22.09.2014, passed by the learned Chief Judicial Magistrate, Bongaigaon, in NICR Case No. 06/2009, convicting and sentencing the accused-petitioner to undergo simple imprisonment for 1 (one) month and to pay a compensation of Rs. 4,00,000/- under Section 138 of the Negotiable Instrument Act, (hereinafter referred to as the NI Act), as well as the judgment and order, sated 31.05.2016, passed by the learned Sessions Judge, Bongaigaon, in Criminal Appeal No. 41(4)/2014, dismissing the appeal and affirming the judgment and order passed by the learned Chief Judicial Magistrate in the aforesaid NICR Case No. 06/2009.

(2.) The fact of the case is that, a complaint was filed by the present respondent No. 2, Sri Tarun Patgiri, alleging that the present petitioner Kuldeep Sarma, who is a contractor by profession, in the BSNL, Bongaigaon and his son Raju Moni Patgiri did business jointly since February 2008 as per agreement by giving a new Tata Sumo, being No. AS-26-1248 to the BSNL authority, Bongaigaon, through the accused-petitioner as per the work order obtained by the accused-petitioner, on monthly rental of Rs. 14,000/- to the son of the complainant/respondent No.

(3.) On 24.12.2008, the accused asked the complainant and his son, aforesaid, that he had obtained a tender from the BSNL, Bongaigaon for construction of BSNL Tower and due to insufficient fund he wanted to involve the complainant and his son as partners on condition that profit and loss will be shared by both of them. Accordingly, financial help was sought for by the accused-petitioner and the complainant/respondent No. 2's son agreed to work with the accused-petitioner and complainant/respondent No. 2 provided him financial help of Rs. 4 lakhs, out of his retirement benefit, on condition to return the same alongwith the share of profit earned from his contract works. On 27.01.2009, the complainant/respondent No. 2 requested the accused-petitioner to repay the said loan amount and the accused issued a cheque, being No. 018818, on 17.02009, amounting to Rs. 4 lakhs in favour of the complainant/respondent No. 2 to be encashed through the Central Bank of India, Bongaigaon branch. This cheque was issued while the complainant/respondent No. 2 visited the house of the accusedpetitioner. Thereafter, the complainant/respondent No. 2 deposited the said cheque in his bank, Bank of India, Bongaigaon branch, on 17.02009. But, the said bank through witness No. 3, issued a statement that the said cheque could not be encashed and returned for insufficient fund on 17.02009, and duly intimated the same to the complainant/respondent No. 2. Thereafter, the complainant/respondent No. 2 served legal notice through his advocate to the accused-petitioner for payment of the said amount within 15 (fifteen) days from the date of receipt of the notice. Although the notice was duly received by the accused-petitioner yet he failed to pay the amount, aforesaid. Therefore, the instant complaint under Section 138 of the NI Act