JUDGMENT :

SIDDHARTHA ROY CHOWDHURY, J.

1. This criminal appeal challenges the judgment and order passed by learned 9th Court of Judicial Magistrate, Alipore, 24-Parganas (South) in connection with the Complaint Case No. C 2532 of 2003, corresponding to TR No. 730 of 2003. By the impugned judgment learned Trial Court recorded an order of acquittal in a proceeding under Section 138 of the NI Act.

2. Mr. Shataroop Purkayastha, learned counsel for the appellant assailing the impugned judgment submits that learned Trial Court failed to appreciate the evidence on record in its proper perspective and the judgment is the outcome of absolute misreading of evidence. It is contended by Mr. Purkayastha that Sri Soumen De and Smt. Paramita De, took a sum of Rs. 8,60,000/- from the Appellant as loan. Soumen De issued a cheque vide No. 612517 dated 2nd January, 2003 drawn on State Bank of India, Esplanade Branch in discharge of their liability to repay the same. The cheque was presented to the State Bank of Hyderabad, Sarat Bose Road Branch which was returned dishonoured for insufficient fund. Statutory notice was given to the drawer of the cheque under Section 138 (b) of the NI Act, by the holder of the cheque, the Appellant herein, calling upon the drawer to pay the said money, but it was not adhered to. Hence, the petition of complaint was filed under Section 138 of the NI Act.

3. Learned trial court after complying with the provision of section 200 of the code of criminal procedure, issued process upon the accused persons who surrendered to the jurisdiction of learned trial court. Accused Soumen De stood the trial pleading his innocence

4. The complainant adduced evidence as PW-1 and he stood the test of cross-examination. In course of cross-examination he produced three documents admitted as exhibits-A, B and C. Those three documents substantiate the claim of the complainant that a sum of Rs. 8,60,000/- was taken by the accused persons from time to time by executing those three documents.

5. It is further contended by learned counsel for the appellant as the cheque was issued by the drawer there is a presumption that the cheque was issued in discharge of the liability incurred by the drawer of the cheque, though the loan was taken by both the husband and the wife. The drawer of the cheque had the obligation to rebut the presumption of Section 139 of the NI Act by making out a probable defence. The drawer of the cheque Sri Soumen De adduced evidence as DW-1. He has admitted the signature appearing on the cheque exhibit-2. During cross-examination he stated that he did not give any reply to the statutory notice issued by Dipak Kumar Shaw, the complainant as he had no liability to repay the amount. His ex-wife told him that she would take care of the loan.

6. According to Mr. Purkayastha, in view of the aforesaid statement of DW-1, learned Trial Court ought to have considered that the accused person, Saumen Dey failed to discharge his onus to rebut the presumption as laid down under Section 139 of the NI Act. Learned Trial Court ought to have recorded an order of conviction.

On the contrary, learned Trial Court refused to accept the testimony of complainant that he lent money, as a sense of suspicion was injected as to the capacity of the complainant to lend the money.

7. Refuting the contention of Mr. Purkayastha, Mr. Debabrata Ray, learned counsel for the respondent no. 2 submits that learned Trial Court did not examine the accused persons properly in the light of Section 251 of the Code of Criminal Procedure.

8. According to Mr. Roy, the accusation of offence was never read over and explained to the accused person and thus, he was seriously prejudiced. The accused persons stood the trial without being informed about the accusation of offence.

9. My attention is drawn to the order dated 24th August, 2011 which runs as follows:

“Both sides are present.

Accds are examine in u/s 251 CrPC. Punishable offence u/s 138 NI Act. The contents of Plea read ov