PARTHA SAKHA DATTA, J.

(1) WHETHER the learned Sessions Judge of jalpaiguri was justified in remitting the case back on remand for fresh decision is the subject matter of consideration in this revisional application.

(2) THE Judicial Magistrate, 1st Court, Jalpaiguri convicted the O.P. No.1 under section 138 of the N.I. Act and sentenced him to suffer simple imprisonment for two months with fine of Rs. 5,000/- in default to suffer further simple imprisonment of one month. A sum of Rs. 3 lac was also awarded as compensation payable to the complainant against the O.P. No.1 under section 357 of the Cr PC.

(3) BEFORE the learned Sessions Judge in Criminal Appeal No. 7 of 2005 who set aside the judgment and order of the learned Magistrate and remanded the case back two points had come up for consideration. The first point was whether quoting of wrong cheque number in the statutory notice under section 138 (b) of the N. I. Act yet maintaining the accurate figure of the amount of the said cheque and also the date of the cheque did vitiate the trial; and secondly whether prosecution of the O. P. No. 1 under section 138 of the N. I. Act would amount to double jeopardy in view of his earlier alleged prosecution under section 420 of the IPC and would be hit under section 300 of the Cr PC. Certain other points were also agitated before the learned Appellate Court by the O.P. / accused but they did not find favour with the learned Judge, and it appears on perusal of the judgment and the order of the learned Judge of the Court below that it was on account of these two grounds that the magistrate was asked to arrive at a fresh decision with liberty to get any further evidence if necessary.

(4) I have heard Mr. Milan Mukherjee, learned Advocate appearing for the petitioner and Mr. Prabir Kumar Ghosh, learned Advocate appearing for the O.P. No. 1.

(5) TOWARDS discharge of legal liability the O.P. No. 1, issued Cheque for Rs. 2,44,255/- being A/C Payee Cheque number 91/ca/12, No. 594662 dated 14-08-1995 drawn on Indian overseas Bank, Jalpaiguri. The cheque was bounced back. Statutory Notice followed under section 138 (b) of the N. I. Act on 21-08-1995 which was received by the O.P. No.1 on 22-08-1995 and the A/d. Card was returned to the complainant/petitioner herein on 23-08-1995. Prosecution was launched as payment was not made. That there was existence of debt or legal liability, and issuance of service of notice are not in dispute. Before the learned Trial court, as I could be able to gather from the judgment of the Magistrate, two points were raised. It was firstly submitted that since the cheque number was 91/ca/12 No. 594662 was wrongly quoted in the notice under section 138 (b) of the N.I. Act as 91/ca/12/544562 the prosecution was bad in law. The learned Magistrate observed in the judgment that throughout the trial the point was never raised and it was only during the argument on the last day that such a point was raised. Secondly, it was agitated before the learned Magistrate that the complainant filed a case under section 420 of the IPC against the O.P. No.1 but the case ended in FRT and he was discharged. Before the learned Magistrate it was argued that the O.P. No. 1 did not issue any cheque and it was a product of forgery. The learned Magistrate observed that how the accused was discharged from the G. R. Case No. 1004 of 1995 under section 420 of the IPC was not the question in the instant case under section 138 of the N.I. Act. In the said police case under section 420 of the IPC, the report of the handwriting expert was that no definite opinion as to the authorship of the disputed signature was possible. The learned magistrate observed that the accused could have proved his defence case in the trial but he did not adduce any evidence in the proceeding under section 138 of the N.I. Act to the effect that the signature in the cheque bounced was a forged signature. The learned Magistrate was of the opinion that a cloudy