The court emphasized the importance of complying with the provisions of Section 138 of the Negotiable Instrument Act, particularly regarding the timing of filing a complaint and the presumption arising from the issuance of a cheque.

JUDGMENT :

Madhumati Mitra, J.

This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure filed by the petitioner Shri Palash Baran Dutta challenging the judgment and order dated 27th June, 2018 passed by the learned Additional Sessions Judge, 7th Court, Barasat in Criminal Appeal No. 12 of 2015 thereby affirming the judgment and order dated 13th March, 2015 passed by learned Judicial Magistrate, 1st Court, Barasat in complaint Case No. 1100 of 2002 under Section 138 of the Negotiable Instrument Act. (Hereinafter referred to as Act).

2. The present opposite party No. 2 Smt. Leela Dutta wife of late Monoranjan Dutta filed a complaint against the present petitioner for commission of the alleged offence punishable under Section 138 of the Negotiable Instrument Act. It was alleged in the said complaint that the present petitioner in discharge of his liability towards payment of consideration money for a piece of land purchased by him from the complainant issued a cheque of Rs.65,000/- (Rupees Sixty five thousand) only in favour of the complainant i.e. present opposite party No. 2. The opposite party No. 2 presented the said cheque to her bank for encashment within its validity period but the said cheque was not honoured for insufficiency of fund. The opposite party/complainant served legal notice demanding the amount mentioned in the said cheque. The said notice was duly received by the present petitioner on 29th July, 2002. The petitioner refused to make payment of the amount of Rs.65,000/- (Rupees Sixty five thousand) covered by the said cheque by giving a reply through his Advocate. Learned Magistrate was pleased to issue process against the present petitioner to face trial for commission of alleged offence punishable under Section 138 of the Negotiable Instrument Act.

3. After conclusion of trial, the learned Judicial Magistrate, 1st Court, Barasat convicted the present petitioner for committing an offence punishable under Section 138 of the Negotiable Instrument Act and sentenced him to suffer simple imprisonment for a term of six months and to pay fine of Rs.1,30,000/- (Rupees One lakh thirty thousand) in total in default, to suffer further simple imprisonment for three months.

4. The petitioner having been dissatisfied with the Judgment and order of conviction, preferred a criminal appeal being No. 12 of 2015 before the learned Sessions Judge, Barasat, North 24 Parganas. The said appeal was heard by learned Additional District and Sessions Judge, 7th Court, Barasat on 27th June, 2018. The learned Judge dismissed the said appeal on contest. The present petitioner was directed to surrender before the Court of learned Trial Magistrate within a period of fortnight from the date of delivery of the judgment.

5. The judgment and order passed by the Learned Judge in appeal are under challenge.

6. Learned Advocate appearing for the petitioner has assailed the impugned judgment and order of conviction mainly on two grounds.

7. His first contention is that the complainant filed the complaint against the petitioner for commission of offence punishable under Section 138 of the Negotiable Instruments Act without complying with the mandatory provisions contained in proviso (C) to Section 138 of the Negotiable Instruments Act.

8. According to his contention the complaint under Section 138 of the Negotiable Instruments Act was premature one and was not tenable in law as it was filed before expiry of 15 days from the date of receipt of the notice for making payment.

9. The second contention of the Learned Counsel appearing for the petitioner is that the impugned cheque was issued as security not in discharge of any existing debt and liability. Learned Advocate for the petitioner has further contended that the Learned Judge overlooked to consider this aspect while passing the impugned judgment.

10. In the present case, admittedly the petitioner purchased a piece of land from the complainant on payment of considerati