The court reiterated that the purpose of Section 138 of the Negotiable Instruments Act is to ensure the recovery of money and not to send the convict for imprisonment. The court emphasized that the main mission of such cases is to ensure the recovery of money and not to send the convict for imprisonment.

Siddhartha Chattopadhyay, J.

Calling in question the legal preganability of the Judgment dated 13th January, 2012 passed by the learned Judicial Magistrate, 5th Court at Barrack pore and the Judgment passed by the learned Additional Sessions Judge, Fast Track Court 3, of Barrackpore on 16.08.2013 in Criminal Appeal No. 3 of 2012, the petitioner has filed this application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973.

2. According to the petitioner, the learned Courts below failed to appreciate the position of law and the evidence in its proper perspectives and specifically the evidence of D.W. 1 was not at all considered properly. There are discrepancies in the evidence, yet the learned Courts below held him guilty.

3. In the interest of effective adjudication factual aspect needs to be restated. The complaint case in a capsulated form is such that he is one of the partners of M/s Barrackpore Auto Services and the accused took a loan of Rs. 5,00,000/- (Rupees Five Lakhs) from the complainant to meet his financial problem and he undertook to repay the same after getting a bank loan. The accused, in discharge of his liability to repay, had issued one account pay cheque bearing No. 546103 dated 24.01.2004 for Rs. 2,50,000/- drawn on ABN AMRO Bank, Durganagar Branch in favour of the complainant. The complainant thereafter presented the said cheque for encashment but the cheque was dishonoured with a remark of the concerned bank “full cover not received.” The said intimation was given to the complainant on 22.01.2004. Thereafter, the complainant sent a demand notice as per law by registered post with A.D. asking the accused to pay the amount of aforesaid dishonour cheques and the said notice was received by the accused on 26.02.2004. In spite of that notice the accused did not pay any single farthing within the stipulated period which compelled the complainant to initiate the proceeding against him.

4. It appears from the impugned order of the learned Magistrate that she has examined the accused under Section 251 of Cr.P.C. and the substance of accusation was read over and explained to the accused to which he pleaded not guilty and claimed to be tried.

5. Learned Trial Court has formulated the point for consideration. Evidence was recorded and after considering the evidence she has found the accused guilty of committing the offence under Section 138 of N.I. Act and has convicted him. Learned Trial Court found the accused guilty and convicted him to suffer simple imprisonment for three months and also directed to pay a sum of Rs. 2,50,000/- as compensation under Section 357 (3) of Cr.P.C. for financial loss and harassment in default to suffer simple imprisonment for two months more.

6. Challenging the said finding the convict has preferred an appeal bearing No. 3 of 2012 which was also dismissed by the Additional Sessions Judge, Fast Track 3rd Court, Barrackpore, North 24 Parganas.

7. At the time of hearing learned Counsel appearing on behalf of the petitioner has contended that the learned Court below did not consider that there was no resolution of the partnership firm to accommodate loan to any other person. Secondly, the cheque was not written by the accused so he should be given “benefit of doubt.” As against this learned Counsel appearing on behalf of the opposite party contended that the evidence as recorded by the Trial Court is justified and that there is proper appreciation of evidence. Learned Counsel appearing on behalf of the Opposite Party No. 1 mainly contended that the compensation amount is not proper and other part of the sentencing portion is well justified.

8. Trial Court as well as First Appellate Court has analysed the evidence and so there is little scope for the Revisional Court to re-appreciate the evidence unless there is gross mistake on their part. It appears that the learned Trial Court has considered the evidence. It goes without saying that whether the partnership fi