JUDGMENT :

CHAITALI CHATTERJEE DAS, J.

1.This application under section 148(3) of the Negotiable Instruments Act, 1881, was filed against the judgement and order dated July 7, 2022 passed by the learned Additional District and Session Judge, Bench-II , BICHAR BHAWAN in criminal appeal number 159 of 2019 affirming the judgement and order dated June 14, 2019 passed by learned Metropolitan Magistrate, 20^th court, thereby sentencing the petitioner to pay a fine of Rs. 6, 00, 000 within one month from the date of judgement, in default to undergo simple imprisonment for three months.

Brief resume of the case

2. The opposite party no. 3 was introduced to the petitioners by one Swapna Saha when the opposite party no. 2 expressed his interest in obtaining the franchise of AACUS Education and the possibility to run its franchise in his property situated at Madhyam Gram. The petitioner was influenced and considered the opposite party no. 2 as the main franchisee of 24 Parganas North and paid the Opposite party no. 2 an amount of Rs. 5, 00, 000 vide cheque no. 174868 on January 9, 2013 towards the mandatory infrastructure of the franchisee along with the security cheque. The said deal was never executed and the opposite party no. 2 returned the entire money to the petitioner vide cheque no. 346906 January 10, 2013 except the security cheque.

3. The petitioners received a demand notice on August 12, 2014 issued by an advocate of the opposite party No. 2 intimating about the dishonouring of the aforesaid security cheque to the tune of Rs. 5 lakhs which was never returned by the opposite party no. 2 .The petitioners in reply to the said letter categorically denied about existing debt or liability upon the petitioners and clarified the closure of transactions in between the petitioners and the opposite party No. 2. The opposite party no. 2 initiated a proceeding under section 138/141 of the Negotiable Instrument Act, 1881 and the complaint was filed before the court of learned Additional Chief Metropolitan Magistrate at Calcutta took cognizance of the same and transferred the matter to the court of learned Metropolitan Magistrate, 20^th Court. The case was decided by the learned court and passed the order of conviction against the petitioners. Being aggrieved thereby a criminal appeal No. 159 of 2019 was filed before the Additional District and Sessions judge, Bench II , Bichar Bhawan which was dismissed on contest and the judgement passed by the learned Metropolitan magistrate was affirmed. Challenging the said order of conviction this revisional application has been filed.

Submissions

4. The learned Advocate appearing on behalf of the petitioner argued that none of the witnesses including P.W. 1 could produce before the court either the deposit slip or its counterpart in evidence which would have conclusively proven the presentation of cheque by the complainant/opposite party no. 2. Neither the cheque returned register produced in evidence by P.W. 3 contained any information regarding the purported dishonour of the cheque in question. This clearly establishes the fact that there was no dishonour of the cheque in question as the cheque in question was never presented for clearing which is evident from the document for which no explanation would be offered in evidence by the P.W. 2 and 3, the bank staff.

5. The physical examination of the cheque which was marked as exhibit in evidence clearly reveals that the cheque does not bear any mark, whatsoever of being accepted by the bank for clearing. It does not contain the number of the drawee on the reverse side of it even. The learned advocate further argued that according to the S.B.I manual, it is mandatory to mention the account number on the reverse side of the cheque as deposed by P.W. 12. Additionally no illustration or any description of any existing debt and /or liability on the part of the petitioners/accused either in the legal notice or the complaint of petitioner brought on record can be found