The main legal point established in the judgment is that the trial court did not exceed its jurisdiction when passing the impugned judgment and emphasized the essential ingredients to prove a case under Section 138 of the N.I. Act, along with the standard of proof required for rebutting presumptions under the Act.

JUDGMENT

Siddhartha Roy Chowdhury, J. - This is an appeal with Special Leave of the Court and challenge in this appeal is to the judgement of acquittal passed by learned Chief Judicial Magistrate, Malda in Case No. 600C/2003 on 17th December, 2017.

2. Briefly stated, Subhrangshu Das, the proprietor of M/s Rahul Enterprise filed a petition of complaint before the learned Chief Judicial Magistrate, Malda under Section 138 of the Negotiable Instrument Act against M/s A.B. Construction being represented by its proprietor Ajay Basu contending, inter alia, that in discharge of the liability in connection with the purchase of a tractor by a party, the accused person issued a cheque of Rs. 3,23,600/- in favour of the complainant drawn on Oriental Bank of Commerce which was presented to Punjab National Bank, Malda Branch. The cheque was returned with the endorsement 'payment stopped by the borrower'.

The complainant then issued a notice calling upon the accused person to pay the said amount. Despite receipt of notice the accused person refused to act in terms of the notice. Hence, petition of complaint was filed and learned Trial Court having found prima facie case issued process under Section 138 of the Negotiable Instrument Act. Accused person upon receipt of such notice surrendered to the jurisdiction of learned Trial Court. He was examined under Section 251 of the Cr.P.C. and pleading innocence he claimed to be tried.

3. This case has chequered history. Earlier the petition of complaint was disposed of by judgement and order of conviction passed by learned Chief Judicial Magistrate, Malda on 19th June, 2011. Said judgement was challenged in an appeal before the learned Additional District and Sessions Judge, 5th Court, Malda. Learned Appellate Court was pleased to set aside the judgement and order of conviction passed by learned Trial Court. The complainant challenged that order of the Appellate Court before this Hon'ble Court being CRA 504 of 2013 and the Co-ordinate Bench of this Court was pleased to set aside the judgement passed in the Criminal Appeal No. 7 of 2014 by learned Additional District and Sessions Judge, 5th Court, Malda and sent back the case on remand, with the direction upon the learned Trial Court to allow the complainant to lead further evidence to prove that Subhrangshu Das is the sole proprietor of the appellant. Pursuant to that order, the appellant was allowed to adduce evidence and learned Chief Judicial Magistrate, Malda was pleased to pass the judgement impugned after complying with the order passed in CRA 504 of 2013. An order of acquittal was recorded by the learned Trial Court.

4. Kazi Safiullah, learned Advocate representing the appellant strenuously argued that learned Co-ordinate Bench while passing the judgemeent in Criminal Appeal No. 504 of 2013 was pleased to send back the case on remand to decide a very short issue as to the status of the Subhrangshu Das as proprietor of the appellant M/s Rahul Enterprise. Therefore, learned Trial Court had no jurisdiction to decide the issues already answered in favour of the appellant, and by necessary implication affirmed by the Co-ordinate Bench of this Hon'ble Court in the earlier judgement. The judgement impugned is therefore perverse and should be set aside.

5. In my humble opinion, when the case was sent back on remand with the direction upon the learned Trial Court to permit the appellant to lead further evidence to decide the issue regarding status of Subhrangshu Das as the sole proprietor of the appellant company after setting aside the impugned judgement passed in Criminal Appeal No. 7 of 2014, there is no reason to hold that learned Trial Court transgressed his jurisdiction by passing the impugned judgement upon appreciation of the evidence on record. It was virtually an open remand and learned Trial Court was under obligation to decide all the points required to adjudicate a proceeding under Section 138 of the N.I. Act, after complying with the directio