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TMI Blog2023 (8) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... o it proves that the petitioner was allowed to adduce DWs but he has not availed the same. In the present case the petitioner cannot be awarded to suffer simple Imprisonment for more than 06 months in default of payment of compensation. Consequently the portion of the order of the sentence passed by the Learned Magistrate affirmed by the Learned Additional Sessions Judge is appeared to me improper and illegal. The present petitioner is aged about 80 years; he has already suffered simple imprisonment during the pendency of the instant revision. Some amount has already been deposited by the direction of this court before the Learned Magistrate. Considering the entire facts and circumstances and considering the observation made above the impugned order of default of payment by the petitioner/accused to suffer simple imprisonment for nonpayment of the compensation amount within stipulated period is set aside. Application disposed off. - HON BLE MR. JUSTICE SUBHENDU SAMANTA. For the Petitioner : Mr. Sandipan Ganguly, Sr. Adv., Ms. Priyanka Sarkar, Adv., Mr. S.N. Arefin, Adv., Mr. R. Sing, Adv. Ms. R. Binayak, Adv. For the Opposite Party : Mr. Apalak Basu, Adv., M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Learned Additional District and Sessions Judge, Fast Track 1st Court Calcutta. During the continuation of the appeal one application u/s 391 of the Code of Criminal Procedure for adducing additional evidence was preferred by the present petitioner/accused. Learned Additional Sessions Judge heard the appeal along with the application and by passing the impugned order dated 17th November 2017 affirmed the order of the Learned Magistrate. Hence this revision. Learned Advocate for the petitioner submits that the Learned Judge, has failed to appreciate the facts and circumstances of this case and the impugned judgment is palpably improper and illegal in the eye of law. Learned Judge has failed to consider the fact that during the examination of the accused u/s 313 Cr.P.C. Petitioner specifically stated that he has already paid some of the cheque amount and was received by the present opposite party prior for the filing of the complaint. The receipt of the said payments are within the custody of the petitioner. The Trial Magistrate did not integrated into the said fact the Appellate Court also did not allow the present petitioner to adduce further evidence and exhibit the payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party initiated proceeding u/s 138 of Negotiable Instrument Act before the Learned Metropolitan Magistrate Calcutta. The petitioner being the accused appeared before the Learned Magistrate and had taken part of the proceeding and after hearing the Learned Advocate for both parties the Learned Magistrate has passed the impugned Judgment and Order including the sentence on 05th December 2014. Thereafter the petitioner preferred a revisional application before the Learned Sessions Judge, which was subsequently converted into the criminal appeal and after hearing the appeal from the both side. Learned Additional and Sessions Judge has passed the impugned order. The impugned order suffers no illegality. Thus, it cannot be set aside. During the course of argument Learned Advocate for the petitioner cited a decision of Hon ble Supreme Court passed in Dasarathbhai Trikambhai Patel Vs Hitesh Mahendrabhai Patel Anr. reported in (2023) 1 SCC 578 .... . When a part payment of the debt is made after the cheque was drawn but before the cheque was encashed, such payment, held, must be endorsed on the cheque u/s 56 of the Act and the cheque cannot be presented for encashment without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h came to be dishonoured on the ground of insufficient funds and thereafter a fresh consolidated cheque of Rs. 9,55,574 was given which has been returned unpaid on the ground of STOP PAYMENT . Therefore, the cheque in question was issued for the second time. Therefore, once the accused has admitted the issuance of cheque which bears his signature, there is presumption that there exists a legally enforceable debt or liability under Section 139 of the NI Act. However, such a presumption is rebuttable in nature and the accused is required to lead the evidence to rebut such presumption. The accused was required to lead evidence that the entire amount due and payable to the complainant was paid. Heard the Learned Advocate perused the materials on record it appears that the Learned Magistrate has conducted the proceeding acording to the provisions of law and during the course of examination of the accused/ petitioner u/s 313 Cr.P.C. Petitioner stated some of the amount of the cheques has already been paid to the opposite parties and he possessed those receipts. It appears from the LCR that the present petitioner intends to adduce evidences for defence accordingly the date was pos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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