IMPORTANT POINT
Conviction cannot be sustained when there is great probability of non-existence of consideration.

H.C. Mishra, J.— Heard learned counsels for both the sides and perused the record.

2. This appeal is directed against the Judgment of acquittal dated 24.4.2009 passed by Shri Kumar Kamal, learned Additional Sessions Judge, Fast Track Court-III, Dhanbad in Criminal Appeal No. 288 of 2008, whereby the learned Appellate Court below has set aside the Judgment of conviction and Order of sentence dated 1.9.2008 passed by the learned Trial Court in C.P. Case No. 414 of 2006/Trial No. 471 of 2008, convicting the respondent No.2 accused for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘N.I. Act’). It was held by the learned Appellate Court below that the accused had succeeded in raising probable defence and the presumption under the N.I. Act was rebutted by the accused. Accordingly, the respondent accused was acquitted of the accusation by the learned Appellate Court below.

3. The complainant Gauranga Dutta had filed the complaint petition in the Court below against the accused Md. Kalam Azad stating that the complainant is the proprietor of shop no. 8, situated at Dutta Mansion, Hirapur, Dhanbad and the accused was inducted as a tenant at the monthly rental of Rs.625 per month, which was subsequently enhanced up to Rs.781 per month and it was agreed between the complainant and the accused that apart from the said rent, the accused shall pay for consumption of the electricity charges separately each month to the J.S.E.B. as per the bill raised. It is alleged by the complainant that during October 2004 and October 2005, the accused consumed 578 units of energy amounting to Rs. 10,729 and when the complainant learnt that the accused had not bothered to deposit the amount, he requested the accused to clear the bills of the J.S.E.B. The accused induced the complainant dishonestly and fraudulently and took a sum of Rs. 10,000 from the complainant and issued a post-dated cheque for Rs. 10,000 dated 31.12.2005 drawn upon the Bank of India, Hirapur S.S.I. Branch in favour of the complainant. The said cheque was deposited in the Bank, but was returned unpaid with an endorsement “Insufficient amount” vide return memo issued by the Bank on 6.1.2006. A legal notice of demand was sent to the accused on 31.1.2006 for making payment of the amount within fifteen days, but when the said notice was re- turned unserved, the complaint case was filed. It is alleged in the complaint petition that returning of the notice was managed by the accused himself through the postal peon, though the accused was having a large number of family members residing there at the same address, which the complainant undertook to prove during the trial.

4. From perusal of the record, it appears that the complainant has examined three witnesses in this case. CW1 Arbind Kumar Singh, has supported the case of the complainant. However. from the evidence of this witness, it is clear that he has stated that cheque was given by the accused to the complainant on 4.11.2005 and he has admitted in his cross-examination also that the cheque was given on 4.11.2005.

5. CW2, Sunil Kumar Kujur, is the Manager in Allahabad Bank, who has proved pay in slip of the cheque, which was deposited by the complainant, which was marked as Ex.1. He has also proved the seal on the back of the cheque, which was marked as Ex. 2. He has proved the return memo of the cheque, which was marked as Ex. 3 and the information given to the complainant pursuant thereto, marked as Ex. 3/1.

6. CW3 is the complainant himself, who has supported his case and has also proved the cheque, which was marked as Ex. 4. The legal notice was marked as Ex. 5, the envelope was marked as Ext. 5/1 and the acknowledgment due was marked as Ex. 5/2. From the cross-examination of the complainant on behalf of the defence, it is apparent that he has admitted that cheque was given to the complainant on 4.11.2005 at about 10.00 to 11.00 a.m. He has also admitted that the complainant a