JUDGMENT :

(Tirthankar Ghosh, J.) :

1. The present appeal has been preferred against the judgment and order of acquittal dated 16.03.2021 passed by the learned Additional Sessions Judge, 2nd Court, Sealdah in Criminal Appeal No. 49 of 2018, wherein the learned Appellate Court was pleased to set aside the order of conviction and sentence passed by the Learned Additional Chief Judicial Magistrate, Sealdah in Complaint case no. 879 of 2007 thereby acquitting the accused/respondent from the charges under Section 138 of the Negotiable Instruments Act.

2. Complaint case no. 879 of 2007 was initiated under Section 138 of the Negotiable Instruments Act against the accused namely, Sukla Chanda by the appellant herein Aries Probono Publico Society (hereinafter referred to as the ‘complainant Society’). The allegations made in the petition of complaint were to the effect that the complainant was Chairman of Aries Probono Publico Society having its office at Kolkata and the accused is a businesswoman who approached the Society for temporary financial assistance and the complainant Society agreed to the request of the accused by way of paying a sum of Rs.1,00,000/-in cash. The accused agreed to repay the amount on 28.09.2007 and issued an account payee cheque bearing no.301072 dated 28.09.2007 drawn on HDFC Bank Ltd. Golpark, Kolkata for a sum of Rs.1,00,000/-. The complainant Company deposited the said cheque with its banker UTI Bank Ltd. on 16.11.2007 for encashment but the said cheque was returned unpaid with the bank endorsement “insufficient fund”. The intimation of dishonour was received by the complainant on 17.11.2007. The complainant Society thereafter served a demand notice through its Advocate on 27.11.2007 demanding the amount covered by the dishonoured cheque to be paid within 15 days from the date of the receipt of the notice and in spite of receipt of the notice the accused persons failed and neglected to make any payment, as such the complainant had no other option except to initiate the complaint case for commission of offence punishable under Section 138 of the N.I. Act and on such complaint being filed the learned Court was pleased to take cognizance and issued process against the accused person.

3. In connection with the instant case after cognizance was taken by the learned ACJM, Sealdah process was issued and accused appeared before the learned Court and was enlarged on bail on or about 30.11.2010. The accused was thereafter examined under Section 251 of the Code of Criminal Procedure and the substance of accusation was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. Prosecution in order to prove its case relied upon the complainant Achintya Kumar Niyogi as PW1 and also five documents which were marked as exhibits. The documents which the prosecution relied upon included Ext.1, Cheque bearing no.301072 dated 28.09.2007; Ext.2, Cheque return memo dated 17.11.2007; Ext.3, Legal demand notice dated 27.11.2007; Ext.4, legal demand notice sent to the accused in closed envelope; Ext.5, acknowledgement card.

4. In course of the hearing of the appeal an application under Section 391 of the Code of Criminal Procedure was filed at the instance of the complainant for proving certain documents which were available with the complainant but could not be produced because of mis-management of the conducting lawyer of the complaint, accordingly liberty was granted and the available additional documents were marked as exhibit which included original certificate of registration of the Society as Ext.6, original audit balance-sheet of the Aries Probono Publico Society for the period from 01.04.2007 to 31.03.2008; the balance-sheet which was marked as Ext.7; agreement dated 08.04.2008 between the complainant Society and Accused Mrs. Sukla Chanda which was marked as Ext.8. The defence in order to rebut the prosecution evidence relied upon oral evidence of the accused who examined herself as DW1