Indrajit Chatterjee, J.—I am hearing this appeal as against the judgment and order of acquittal dated 28.06.2013 as passed by the Judicial Magistrate 4th Court-cum- Judicial Magistrate, Sealdah, South 24 Paraganas in complaint case No.86 of 2011 wherein he was pleased to acquit the present respondent No.1 hereinafter called as the private respondent. I may be noted that as per order dated 12.07.2011 has passed in complain case No.86 of 2011 it was ordered by the learned Trial Court that in that case that is complaint case No.86 of 2011 he will also decide complaint case Nos.84 of 11 and 85 of 2011. It may be noted for further reference that cheque number, date and amount involved in this cases may be mentioned below:

1. In complaint case No.86 of 2011 cheque No.316566 dated 20.07.2011 for Rs.25,000/

2. In complaint case No.85 of 2011 cheque No.168624 dated 11.10.2010 for Rs.1,00,000/-

3. In complaint case No.84 of 2011 cheque No.199167 dated 11.10.2010 for Rs.15,500/

2. Thus, the total amount involved was Rs.1,40,500/-. Three separate cases were filed as I have already told regarding the dishonoured all those three cheques. The common case of the complaint before the trial court was that those three cheques as mentioned above were issued by the private respondent on the dates mentioned above for the amount also mentioned above in discharge of existing liability. Those cheques were marked as Exbt. 1B, 1A and 1 respectively. Those cheques were presented by the present appellant to his banker. But, unfortunately, all the three cheques bounced with the remark either “insufficient fund” or “payment stop” by the drawer. Thereafter, notices were issued under Section 138B of the N.I Act to the accused in respect of the three cheques but, unfortunately, original notices could not be produced before the learned trial court and only photo copies were produced and as such those were marked as X, X/1 and X/2 for identification. The returning memos were, however, marked Exbt. 2 series. A.D cards were also placed before the learned trial court but there was no postal stamp on any of the A.D cards. Those three cards were marked Exbt. 3 series. It is clear from the photo copies of the notices that those were posted to Dolan Adhikari, Beliaghata, Kolk – 10, by speed post respectively vide postal receipt No. EW502206978IN, EW502207001IN and EW502206995 of such letters were posted from Kolkata G.P.O on 26,11,2010. It may be noted that no original receipt was produced before the trial court issued by the postal department regarding the posting of such notices.

3. Learned Trial Court held that the appellant was not a professional money lender that the cheques were issued in discharge of existing liability and that all the cheques were dishonoured. The learned trial court acquit the accused on the ground of that there was no endorsement on the postal department on the A.D cards.

4. It was argued by Mr. Mitra, learned Advocate, appearing on behalf of the appellant that in this case, the court should not rely to much on question no.5 of the examination of the accused under Section 313 of the Code of Criminal Procedure wherein the accused candidly denied the receipt of notice as contemplated under Section 138-B of the Negotiable Instruments Act. On that point, he referred to a decision of the Apex Court as reported in (Devender Kumar Singla Vs. Baldev Krishan Singla, AIR 2004 SC 3084) in paragraph no.14, the Apex Court “Mere because the accused stated that he had not received the shares or that the transaction took place on 27-7-1992 in his examination under Section 313 Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence (emphasis supplied by me). It is only the accused’s stand version by way of explanation, when incriminating materials appearing against him are brought to his notice”.

5. Mr. Mitra further submits by taking me to another decision of the Apex Court as reported in (M/s Indo Automobiles Vs. M/s J