The ingredients and proof required to establish a case under Section 138 of the Negotiable Instruments Act, including the presumption under Section 139 and the accused's failure to rebut the presumption.

( 1 ) THIS revisional application is directed against judgment and order dated 20. 9. 02 passed by the learned Sessions Judge, Purulia in Criminal Appeal no. 8/02 thereby affirming the judgment and order of conviction dated 30. 4. 02 passed by the learned Chief Judicial Magistrate (in short CJM), Purulia in complaint Case No. 36/2000 under section 138 of the Negotiable Instruments act (in short N. I. Act) thereby sentencing the accused petitioner to pay a fine of Rs. 1,50,000/- i. d. to suffer simple imprisonment for 6 months with further direction that if the amount of fine be paid, Rs. 1,49,400/- out of the fine amount shall be paid to complainant O. P. No. 1 Nepal Mahato as compensation. Being aggrieved by, and dissatisfied with, the order of affirmation of sentence by the learned Sessions Judge the accused petitioner has preferred the instant revisional application.

( 2 ) MR. Himangshu De, learned Advocate appearing for the accused petitioner submitted that handwriting over the cheque in question is disputed. Name of nepal Mahato, the complainant is appearing in the front page and the back page of the cheque and these two writings of the name Nepal Mahato is almost identical and is not tallying with the signature of the accused where he has signed his name allegedly issuing the cheque on 13. 11. 99. Learned Trial Court did not take any step for handwriting expert for verification of the handwriting or signatures and did not compare the signature of the complainant and accused. The accused petitioner did not issue the cheque at all on 13. 11. 99 and he was falsely implicated in this case.

( 3 ) MR. DE contended that in cross-examination the complainant Nepal Mahato as P. W. 1 admitted that first talk of business deal was taken in his house in the month of January-February, 2000. If the talk of business between accused and complainant was held in January-February, 2000, the question of issuing cheque by the accused on 13. 11. 99 does not arise at all. The evidence thus reveals that there was no business transaction or loan transaction between accused and complainant in the year 1999, and so there was no debt or liability in November, 1999. The O. P. complainant did not produce any paper of income tax to prove that he was running business even prior to 2000. The accused petitioner had no capacity to issue cheque of such a huge amount of Rs. 1,49,400/ -. No paper of income tax was produced in Court by the complainant and naturally adverse presumption should be drawn against the complainant. It would establish that the complainant had no such business transaction nor any type of transaction with the accused for which the accused could have issued the cheque of such a huge amount in favour of complainant.

( 4 ) MR. De further submitted that the learned Magistrate did not compare the handwriting of the complainant or the accused which power he should have exercised under section 73 of the Evidence Act. The learned Magistrate could not have imposed fine of Rs. 1,50,000/- on the accused and he had no power to impose fine exceeding Rs. 5000/ -. The learned Sessions Judge also did not consider that aspect that a Magistrate cannot impose a fine of Rs. 1,50,000/ -. Accordingly, there was no fair trial and there were defects and lacunas in the trial for which the case should be sent back on remand to the learned Magistrate for fresh trial after setting aside order of conviction and sentence. In support of his contention Mr. De cited the decision reported in 2002 Cr LR (SC) 1034.

( 5 ) MR. Sudipto Moitra, learned Advocate for the O. P. complainat submitted that presumption under section 139 of the N. I. Act was in favour of the complainant. He is the holder of the cheque and the cheque was issued by the accused in his name. The cheque was presented for encashment on 28. 4. 2000 when it was bounced. The complainant sent demand notice through his lawyer on 2. 5. 2000 and the accused received the notice on 4. 5. 2000. In spi