IMPORTANT POINT
The existence of alternative remedies does not negate the enforceability of a cheque issued for a loan, allowing the complainant to choose the remedy for recovery.

JUDGMENT :

Tirthankar Ghosh, J.

1. The present appeal has been preferred against the judgment and order dated 02.07.2019 passed by the learned Metropolitan Magistrate, 18th Court at Calcutta in C.S. No. 32819 of 2015 corresponding to TR No. 7626 of 2015 (CIS No. CS/26252 of 2015) under Section 138 of the Negotiable Instruments Act, 1881, thereby acquitting the accused/respondent from the charges.

2. The complainant/appellant Dharmendra Kumar Daga alleges that the accused Debdutta Sen was known to him since long as they were involved in the same nature of business. The accused person demanded a sum of Rs. 7.50 Lakhs as accommodation loan for him for a short period of time to overcome his urgent needs and assured the complainant to repay the same within six months with interest. On such representation and assurances, in good faith the complainant arranged and gave a sum of Rs. 7,50,000/-(Rupees Seven Lakh Fifty Thousand only) to the accused person by way of Cheque No. 000008 dated 03.11.2014 drawn on HDFC Bank, Stephan House Branch, Kolkata-700 001. For assuring the complainant of the accommodation loan, the accused person executed an agreement as Deed of Simple Mortgage on 03rd November, 2014, admitting the receipt of the accommodation loan by way of Cheque and also issued a post dated cheque bearing No. 150047 dated 03.11.2014 for Rs. 1,12,500/- as payment of interest and another post dated cheque bearing No. 150048 dated 05.05.2015 for Rs. 7,50,000/- against the payment of the principal amount. Both the cheques were drawn on Axis Bank Ltd, Ganesh Chandra Avenue Branch, Kolkata- 700 013. The amount of cheque of Rs.1,12,500/- issued by the accused towards interest was encashed. However, the cheque for a sum of Rs. 7,50,000/- towards the principal amount on being presented within its validity period was dishonored with the remarks ‘insufficient funds’ on 07.05.2015. The cheque was again presented on 08.07.2015 when with similar remarks of insufficient funds it was dishonored. The complainant thereafter through his Advocate demanded the amount covered by the dishonored cheque by a notice dated 20.07.2015. The said notice was sent by Speed Post with A/D and it was stated therein that within a period of 15 days from the date of the receipt of the notice,the accused person should pay the amount covered by the dishonored cheque. On receipt of the demand notice the accused sent a reply letter dated 05.08.2015 wherein the issuance of the cheque was acknowledged but the accused denied his liability and failed/neglected to pay the amount covered by the dishonored cheque within the period specified under the relevant provisions of the Negotiable Instruments Act, 1881. As such the accused was liable to be prosecuted and accordingly the complainant filed the complaint before the learned Magistrate praying for taking cognizance, issuance of process, enquiry, final disposal.

3. In order to prove its case the complainant examined himself as P.W.1 and also relied upon a series of documents which included the deed of simple mortgage as Exhibit-1; the bank statement Exhibit-2; the cheque bearing No. 150048 dated 05.05.2015 marked as Exhibit-3; the return memo dated 08.07.2015 as Exhibit-4; demand notice dated 20.07.2015 as Exhibit-5; postal receipt dated 20.07.2015 as Exhibit-6; the track report as Exhibit-7; and the reply letter dated 05.08.2015 as Exhibited-8. The accused examined himself as defence witness being D.W.1, and in his examination-in-chief he contended that he was acquainted with the complainant and had given the cheque along with a document of property. According to the defence witness, the cheque was given as security but after some time the complainant deposited the cheque in bank. He further deposed that the deed which was handed over to the complainant was lying with him and the same was brought to the notice of the complaint by way of reply to the demand notice on 05.08.2015 and it has been marked as Exhibit-8. The witness also st