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TMI Blog2022 (1) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... ality in the judgment passed by learned Magistrate in respect of the sentence and compensation. The Appellate Court has also noticed this fact and pointed out that it is within the discretion of the trial to award compensation and no illegality have been committed due to the difference between the cheque amount and the compensation - the petitioner cannot escape his liability from making payment of the debt he has conceded by issuing the cheques in favour of Opposite Party no. 2. There is no illegality or impropriety in the impugned judgement passed by the learned Additional District and Sessions Judge, F.T.C., 2nd Court, Haldia - revisional application is dismissed on merit. - C.R.R. 2044 of 2012 - - - Dated:- 6-1-2022 - HON BLE MR. JUSTICE ANANDA KUMAR MUKHERJEE For the Petitioner: Mr. Samrat Pal (Amicus Curiae) For the State: Mr. Bidyut Kumar Roy Mr. Pratick Bose Ananda Kumar Mukherjee, J. :- 1. This criminal revision has been filed by the petitioner being aggrieved and dissatisfied with the impugned judgment and order dated 28.3.2012 passed by learned Additional District and Sessions Judge, Fast Track, 2nd Court, Haldia in Criminal Appeal No. 734 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan, the Bank Manager requested him to deposit ₹ 4,00000/-. He has admitted that at the relevant time complainant was present in the room and he offered to accept a loan of ₹ 4,00000/- in order to deposit the same in the bank account of the accused petitioner. DW-1 also deposed that the complainant issued cheque bearing No. 259 of ₹ 4,00000/- in his favour. During his examination under section 313 of the Cr. P.C the petitioner admitted having issued a cheque of ₹ 4,00000/- in favour of the petitioner and that he received the Demand notice issued by the complainant/ opposite party No. 2. 4. Fulfilling all formalities and after considering the evidence on record, learned Additional Chief Judicial Magistrate, Haldia found the accused petitioner guilty of the offence punishable under Section 138 of the N.I. Act and sentenced him to S.I. for one day, till rising of the Court and to pay a compensation of ₹ 6,00,000/- within one month from the date of the order. 5. Being aggrieved with the judgment of conviction and sentence, the present petitioner filed Criminal Appeal No. 734 of 2011 which was disposed of by the learned Additional District and Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers conferred on a court of Appeal by sections 386 of Cr. P.C. which provides for disposal on merit. To avoid a stalemate situation due absence of the petitioner and his advocate, Mr. Samrat Pal, learned Advocate has been appointed Amicus Curiae to assist the court for presenting the petitioner s case. 9. Mr. Samrat Pal, learned advocate appeared on behalf of the petitioner on being appointed as amicus curiae by this court. It is argued by him that there was a business transaction between the petitioner and the complainant and to make payment against overdraft of ₹ 6, 00,000/- from his Bank account the petitioner had taken a loan from the complainant/opposite party no. 2 for which he issued two blank cheques in his favour, only for the purpose of security. Learned advocate argued that the judgment passed by learned Magistrate holding the petitioner guilty of the offence under Section 138 of the N.I. Act is bad in law as the petitioner had no liability to discharge. It is contended that the judgment passed by the Appellate Court is also not tenable as the learned Appellate Court failed to consider the evidence on record and the fact that the present petitioner did not is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cheques regarding their genuineness, correctness of the entries and drawing of the cheques for consideration. Section 139 of the N.I. Act gives rise to a yet another vital presumption that such cheques were issued are for discharge, in whole or in part, of any debt or other liability unless the contrary is proved. In the decision in T. Vasanthakumar Vs. Vijayakumari (2015) 8 SCC 378, it was held that once the accused has admitted the issuance of cheque, as well as signature on it, the presumption under section 139, would be attracted. The impugned cheques have been produced before this Court and the relevant cheques have been marked as xbt. 5 and xbt. 6. The total cheque amount of ₹ 6,15,676/- and admittedly the petitioner did not repay the cheque amount within 15 days after receiving the Demand Notice. The present complaint has been filed within 30 days thereafter, thereby the complainant/ opposite party No. 2 has complied the statutory requirements under Sections 138 and 142 of the N.I. Act. 13. Having considered the entire evidence and the materials on record, I find that D.W-1 has failed to rebut the presumption raised against him which include the exist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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