9911796707
TMI Blog2005 (1) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... ls, the accused issued three A/c payee cheques bearing Nos. 493627 dated 30.10.97, 493628 dated 30.10.97 and 493633 dated 3.11.97 for ₹ 30,000/-, ₹ 20,000/- and ₹ 10,000/- respectively drawn on UCO Bank, Tollygunj Branch. The appellant presented the said cheques in his bank, viz. United Bank of India, Paschim Putiary Branch and all the said cheques were dishonoured with cheque returning memo dated 13.11.97 with endorsement 'exceeds arrangement'. On 18.11.97 the appellant complainant through his Advocate sent demand notice to the accused calling upon him to pay ₹ 60,000/- i.e. the amount of the cheques within 15 days from the receipt of the notice. The accused received the notice on 19.11.97 but he did not make payment of the said amount and accordingly, the complainant lodged the complaint. The case was transferred to the Court of the learned Judicial Magistrate, 5th Court, Alipore for trial and the learned Magistrate by judgment and order dated 31.7.01 held that, it could not be proved that the cheques were issued by the accused and accordingly, the accused was found not guilty and was acquitted. Being aggrieved by and dissatisfied with the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant was the holder of the cheques being presented to him by the respondent. The learned Magistrate did not apply his mind to the provisions of Section 118 of the N.I. Act that complainant was the holder of the cheque and presumption would be that the cheques were given to him by the respondent accused in discharge of his liability. 4. She further contended that the learned Magistrate did not discuss at all the other points which were necessary for giving reasons in the judgment and, order passed by the learned Magistrate without discussing point Nos. 2 to 5 as mentioned in the judgment is bad in law. and in fact, it was not a judgment at all. The learned Magistrate did not appreciate the evidence of the witnesses in accordance with law and also did not consider that in spite of receipt of demand notice the accused respondent did not make payment of the amount of the cheques. Accordingly, this is a fit case where the judgment and order of acquittal should be set aside and the criminal case should be remitted back to the learned Magistrate for fresh trial and fresh decision. 5. Mrs. Chanda, learned Advocate for the respondent contended that the findings of the learned Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal principle, it requires consideration whether in the instant matter the judgment and order of acquittal passed by the learned Magistrate was proper and reasonable and whether interference by this Court is necessary. After going through the evidence and materials on record, I find that the learned Magistrate failed to appreciate the evidence and his failure was so grave that there was miscarriage of justice. The finding of the learned Magistrate that evidence of P.W. 1 Gouranga Chandra Sarkar reveals that the accused denied issue of cheques is not only bad in law but, is a finding based on surmise and conjecture without consideration of evidence and failure of the learned Magistrate to appreciate the evidence in true sense. Appreciation of evidence of P.W. 1 does not reveal at all that the accused respondent denied issue of cheques by him. Suggestion given to P.W. 1 during cross-examination by defence cannot take the place of proof. There was no proper cross-examination of P.W. 1 and other witnesses. P.W. 1 in his evidence stated that the accused gave him three cheques and this evidence remained unchallenged. There was no cross-examination at all over this part of examination-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . list of documents dated 6.3.99 presented in Court some of the documents including the original cheques as well as bank endorsement, postal A/D Card, etc. The original cheques are lying in case record which were filed along with list of documents on 6.3.99. P.W. 1 was examined on 6.3.99. The order sheet of the learned Magistrate dated 6.3.99 does not reveal that the accused or his lawyer questioned genuineness of the documents filed by the complainant in Court on 6.3.99. The learned Magistrate by his order did not reveal that the said cheques or other documents filed on 6.3.99 requires proof of signature. It is clear, therefore, the learned Magistrate did not at all follow the provisions of law and was totally oblivious of provisions of Section 294 of the Code. The learned Magistrate had duty to examine any witness under Section 311 of the Code to reveal truth for just decision of the case if he had any doubt in mind regarding issue of cheques. There was no suggestion also to P.W. 1 that the signature appearing on the cheques were not the signature of accused. When the accused or his lawyer did not dispute genuineness of the documents which were filed in Court the learned Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter should be sent back on remand to the learned Magistrate for fresh trial and fresh decision. The judgment and order of acquittal dated 31.7.01 passed by the learned Judicial Magistrate, 5th Court, Alipore is accordingly set aside. The criminal case is sent back on remand to the learned Magistrate for fresh trial and fresh decision in accordance with law. Liberty is granted to the learned Magistrate to record fresh evidence, if required for the ends of justice and, the learned Magistrate may exercise jurisdiction under Section 311 of the Code to examine any witness or recall any witness already examined for the just decision of the case. The learned Magistrate is directed to complete the trial within four months from the date of communication of this order. 13. In the result, the criminal appeal is allowed and the matter is sent back to the learned Magistrate concerned for retrial in the light of the observations made above. 14. Send a copy of this order along with Lower Court record to the learned Judicial Magistrate, 5th Court, Alipore for information and necessary action. 15. Urgent xerox certified copy be given to the parties, if applied for, expeditionsly. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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