PART PAYMENT OF A DISHONOURED CHEQUE DOES NOT DEFEAT THE ENTIRE CAUSE OF ACTION.

Indrajit Chatterjee, J.

1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure in which this present petitioner who was accused in Complaint Case No. 316 of 2000 under Section 138 of the N.I. Act has assailed the judgement and order dated 4th March, 2013 passed by the learned Additional Sessions Judge, 2nd Court at Howrah in Criminal Appeal No. 2 of 2009 by which the said learned Judge was pleased to affirm the judgement and order of conviction passed by the learned Additional Chief Judicial Magistrate, Howrah on 18/12/2008. The case relevant for the purpose of adjudication of this revisional application can be stated in brief thus :

That one complaint was filed under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (hereinafter called as the said Act) wherein the complainant, now the opposite party before this court averred that on 30/12/1999, an advance of Rs.2,85,000/- was given to the accused by cash and the accused promised to repay the same within ten days and on the very same day, the accused issued a cheque being no. 23912 in respect of his Account no.3361 drawn on Allahabad Bank, Dakshin Jhapordah Branch, P.S. Domjur, District- Howrah covering an amount of Rs.2,85,000/-.

2. The present petitioner before this court - the accused convict while issuing cheque on 30/12/1999 requested the opposite party/complainant not to present the cheque for encashment at leased for ten days from the date of issue of the cheque. The complainant waited for twelve days and then deposited the cheque on 13/01/2000 in his account being S.B. A/c no. 17421 in the United Bank of India, Domjur Branch but the cheque was dishonoured on 17/01/2004 as per the bank memo for ‘insufficiency of fund’ and the complainant received the returned memo from his banker on 20/01/2000. Thereafter, the complainant issued the notice as contemplated under the said Act but even though the notice was received, it was not replied. In paragraph 6 of the complaint, it was further averred that the accused paid Rs.1,00,000/- in the meantime and such payment was admitted by the present revisionist before the learned trial court. Such payment is not in dispute.

3. The matter was decided by the learned trial court and the learned trial court was pleased to convict the present revisionist and directed him to suffer simple imprisonment for four months and further directed to pay fine of Rs.2,85,000/- and in default to suffer imprisonment for one month and further directed on realisation of fine amount, the same will go to the complainant.

4. The judgment was assailed before the Sessions Court and it was decided by the learned 2nd Additional Sessions Judge, Howrah in Criminal Appeal no. 2 of 2009 wherein the learned appellate court was pleased to affirm the said judgement and directed the present appellant to appear before the learned Chief Judicial Magistrate, Howrah within fifteen days from the date of judgement (04/03/2013). In this revisional application this judgement of the appellate court is being assailed.

5. It has been argued by Mr. Dutta Gupta, the learned advocate for the requisitionist by taking me to the list of dates which has been taken on record that the cause of action came down to Rs.1,85,000/- as after receipt of the notice accused/convict paid Rs. 1 lakh and that was duly accepted by the complainant before filing of the complaint on March 14, 2000 and as such demand notice is defective and a separate demand notice ought to have been issued.

6. He further submitted that the cause of action arose from the date of receipt of notice which was received on February 02, 2000 and the said Act vide Sections 138 and 142 has fixed after the expiry of the period of limitation. He doubted the source of the complainant to pay such huge amount.

7. He further submitted that the complainant received the return memo from the banker on January 20, 2000 vide Ext. 8 and the complaint was filed on March 14,