JUDGMENT :

(Shampa Dutt (Paul), J.) :

1. The present revisional application has been preferred against the Judgment and Order dated 28.01.2019 passed by the Additional District and Sessions Judge, Fast Track, 3rd Court, Malda in Criminal Appeal No. 8/2016, affirming the judgment and order of conviction of the petitioner dated 30.11.2016 passed by Learned Chief Judicial Magistrate, Malda in Case No. 1137C/2011 under Section 138 of the Negotiable Instruments Act, 1881.

2. The accused petitioner’s case is that the present case relates to a petition of complaint filed by the opposite party No. 2 before the Learned Chief Judicial Magistrate, Malda alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881. Upon perusal of such complaint the Learned Magistrate, was pleased to take cognizance on the same. The case was registered as Case No. 1137 C/2011.

3. The prosecution case is that on prayer of the accused person the complainant Bank sanctioned a house building loan in favour of the accused amounting to Rs. 2,00,000 (Rupees two lacs) and Rs. 1,00,000/-(Rupees one lac) respectively on 31.07.2001 and 08.03.2002 under certain terms and conditions of payment of the said loan amount. Accused person had to re-pay the loan in 160 equal monthly installments. The accused violated the said terms and conditions. The complainant/bank issued notices to the accused under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. On the request of accused the complainant stopped said proceeding upon having been handed over a cheque bearing no. 15942 dated 28.03.2011 of Rs. 4,14,561/-(Rupees four lacs fourteen thousand five hundred sixty one) only covering arrear instalments and agreed to repay the subsequent instalment regularly. The complainant submitted the said cheque to Bangiya Gramin Bikash Bank, Malda Branch for collection on 26.04.2011. But the said cheque was returned by his banker with remark “fund insufficient” vide return Memo dated 26.04.2011. But again on the request of the accused person the said cheque was resubmitted on 23.08.2011. But again the said Cheque was dishonoured for the same reason and the complainant was informed accordingly on 23.08.2011 vide return Memo dated 23.08.2011 of the Bangiya Gramin Bikash Bank.

4. The proceedings of the present case was initiated with the recording of the plea of ‘innocence’ of the petitioners, under Section 251 of the petitioner in their defence.

5. Upon conclusion of the trial, by an order dated 30.11.2016 the Learned Chief Judicial Magistrate, Malda was pleased to find the petitioner guilty for commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and convicted him by sentencing him to suffer Simple Imprisonment for 2 (two) months and further directed him to pay compensation of Rs. 6,00,000/-(Six lacs) under Section 357 (3) Cr.P.C. to the complainant within 3 (three) months.

6. Petitioner states that on 26.09.2013 the Malda District Central Co-operative Bank Ltd. by a Memo No. HO/1294 served a notice to the petitioner under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, to take possession of the secured assets i.e. land & Building.

7. The Petitioner further submits that on self same cause of action two separate case/proceedings under two different Acts cannot proceed.

8. The Petitioner submits that he deposited Rs. 70,000/-and further made a Fixed Deposit of Rs. 15,000/-and LICI policy of a certain amount has been mortgaged with the concerned Bank.

9. The petitioner submits that when a case U/s 13(4)(a) of SARFAESI Act has been started, another proceeding U/s 138 of N.I. Act for the same loan amount is illegal.

10. Being aggrieved by and dissatisfied with the above noted judgment and order of conviction, the petitioner preferred an appeal before the Learned Sessions Judge, Malda. The said appea