1. This revision has been preferred by the petitioner-accused Sri Sukhari Rai against the judgment and order dated 29.3.2008 passed by the learned Addl. Sessions Judge No. 2 (FTC), Tinsukia in Crl. Appeal No. 85(4)2007 where by the learned Judge affirmed the judgment and order dated 3.11.2007 passed by the learned Addl. Chief judicial Magistrate, Tinsukia where by the learned trial court has convicted the petitioner-accused under section 138 of the NI Act and sentenced to pay a fine of Rs. 75,000 and in default of payment of fine to undergo simple imprisonment for two months.

2. The material facts which have led to the making of the present revision application may be set out as follows-

3. That the opposite party/complainant Biraj Pranjal Gogoi filed a complaint before the learned Chief Judicial Magistrate, Tinsukia for prosecution of the present petitioner Sukhari Rai as accused under section 138 of the Negotiable Instrument Act R/W 420 IPC. His case is that his father and himself was the owner and occupier of a plot of land measuring 2 Bigha covered by Dag No. 58 of PP No. 8 situated at Pakharijan in Tinsukia district. They sold and delivered possession of the said land to Sukhari Rai at a consideration of Rs. 1,10,000 and the accused-petitioner Sukhari Rai paid the amount through three cheques bearing Nos. 218126, 218127 and 218128 all are dated 20.7.2006 drawn on Federal Bank, Tinsukia Branch. A separate un-registered agreement was also executed in this regard where in also mentioned that the cheques were belongs to the accused in respect of his A/C No. 9137 of the Federal Bank. Out of the aforesaid three cheques, cheque No. 21816 dated 20.7.2006 for Rs. 40,000 was duly en-cashed but the rest two cheques were dishonored which were presented on 23.10.2006 and 11.12.2006. There after the complainant issued a demand notice to the accused demanding payment of Rs. 70,000 within 15 days from the date of the receipt of the notice and the notice was duly served. But as the accused failed to make payment of the amount, as such the complainant has brought the aforesaid complaint case against the accused-petitioner.

4. Upon receiving the complaint the learned trial court has examined the complainant and issued the process against the accused. On appearance of the accused, particulars of offence under section 138 of the Negotiable Instrument Act read over and explained to the accused to which he pleaded not guilty and claimed to be tried.

5. During the trial, complainant side has examined two witnesses while the defense adduced none. Statement of the accused also recorded under section 313, Cr.PC and his plea is total denial and after completion of the trial the learned trial court has convicted the present petitioner-accused for the sentence as has been mentioned above.

6. Being aggrieved and dissatisfied with the order of sentence, the present revision has been preferred by the petitioner-accused on the grounds mentioned in the memo of revision.

7. I have heard argument of learned counsel for both sides.

8. During the course of hearing learned counsel for the petitioner Mr. P.J. Saikia has contended the cheques in question were self drawn cheques and not the bearer cheques. Neither the complainant was the payee nor the holder in due course and as such the provision of sections 118 and 139 of the NI Act is not applicable and there is no any legally enforceable debt.

9. It was next contended that the purported agreement was executed by the father of the complainant. The complainant is not the party to the alleged agreement nor he is power of attorney holder.

10. Again submitted that the fact as stated in the complaint and the content of the notice Ext. 10 is different. As per the notice the land was sold by the complainant and the cheques were issued to him. But as per the complaint the land was sold by the complainant and his father Phandhar Gogoi and as per the unregistered deed Ext. 1 Phanidhar Gogoi the father of the complainant