IMPORTANT POINT
Closure of account would not come to rescue of applicant to avoid penal liability under Section 138 of N.I.Act.

A.P. Bhangale, J.—This Revision Application was earlier dismissed in default on 7.6.2010. Thereafter, it was restored by order dated 5th July, 2010 and posted for final hearing. Learned counsel for the applicant Shri S. V. Bhutada was heard on 22nd March, 2011 and on 5.12.2011. Today I have heard Shri A. B. Patil, learned counsel for the respondent.

2. By this revision application, the applicant has challenged the question of legality, propriety and correctness of the impugned judgment and order dated 29th August 2007 delivered by learned Adhoc Additional Sessions Judge-II, Akola in Criminal Appeal No. 2/2006 arising from the judgment and order dated 17th December 2005 delivered by Joint Judicial Magistrate, Akola in Summary Criminal Case No. 17559/1996.

3. Perused the record and proceedings.

4. The facts, which appear from the record, are as under: The complainant is the Co-operative Society doing banking business in the district of Akola. The applicant (accused) had taken loan in the sum of Rs.20,000 for the purpose of business with promise to repay amount within 24 months by equal monthly installments of Rs.1,015, but the accused did not repay the loan as agreed. The accused, after insisting from the complainant bank to repay the loan, gave a cheque bearing No. 761370 dated 11.7.1996 drawn upon State Bank of India at Sasti branch in the sum of Rs.26,478.80 ps. The cheque was presented by the complainant society for encashment in the bank, but it was returned dishonoured with Memo dated 17.8.1996 with remark “account closed”. The complainant then issued notice of demand dated 31.8.1996 which was neither replied nor the accused complied with the demand. It is thus alleged that offence punishable under Section 138 of the Negotiable Instruments Act was committed. Thus, complaint came to be filed before the learned Judicial Magistrate First Class, Akola.

5. The accused was charged as per Exhibit 57 to which he pleaded not guilty. The complainant led evidence of its Manager PW1 Pradeep Kale, Branch Manager of State Bank of India, PW2 Arun Galgalikar, in order to prove the complaint. PW1 Pradeep gave evidence regarding transaction which occurred in the year 1994. The accused had borrowed sum of Rs.20,000 from the complainant society and agreed to repay the amount within 24 months by means of equal monthly installments and furthermore; the fact that cheque issued by the accused in the sum of Rs.26,478.80 ps on 11.7.1996 drawn upon State Bank of India, branch at Sasti when presented on 7.8.1996 for encashment, it returned dishonoured with Memo dated 17.8.1996 intimating the complainant that the accused had stopped the payment with remark “Payment Stopped”. Under these circumstances, notice of demand dated 31.8.1996 was sent by R.P.A.D. as well as under certificate of posting, but the accused did not repay the amount as demanded. Thus, the complainant society was constrained to lodge the complaint. PW 2 Arun, Branch Manager of State Bank of India, Sasti Branch, deposed about the account of the accused with the State Bank of India with cheque book facility in the name of Swastik Industries. The cheque in question was returned unpaid with remark “payment stopped” vide Memo Exhibit 74.

6. The learned Trial Magistrate, who considered the evidence led, concluded that the accused had committed offence punishable under Section 138 bf the Negotiable Instruments Act and convicted the accused accordingly and sentenced him to suffer simple imprisonment of three months and to pay fine of Rs.1,000 in default the accused was directed to suffer simple imprisonment of one month. In addition, the accused was directed to pay amount of Rs.30,000/to the complainant towards compensation, expenses etc.

7. The judgment of the conviction and sentence was challenged in Criminal Appeal No. 2/2006 before the learned Adhoc Additional Sessions Judge-II, Akola, who by the judgment and order dated 29.8.2007 found that the facts were established. In