Point of Law : There is no reasons to make any interference in the Judgments and Orders passed by the learned Trial Courts.

JUDGMENT :

Heard Mr. A. Tewari, learned Amicus Curiae appearing on behalf of the petitioner. Also heard Ms. A. Begum, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. S. Islam, learned counsel appearing on behalf of Mr. N. Islam, learned counsel for the respondent No.2.

2. This is an application filed under Sections 401 read with Section 397 of the Code of Criminal Procedure, 1973 challenging the Judgment and Order dated 29.11.2008 passed the learned Additional Sessions Judge (FTC), Bongaigaon, in Criminal Appeal No.08(I)/2007 by upholding the Judgment and order dated 17.01.2007 passed by the learned Sub-Divisional Judicial Magistrate (S) (in short SDJM), Bongaigaon in C.R. Case No.123/2005 by convicting and sentencing the accused petitioner under Section 138 of Negotiable Instrument Act (in short N.I. Act) to pay a fine of Rs.1,05,000/-(Rupees One Lac and five thousand) only and in default rigorous imprisonment for 1(one) year and to release the said amount in favour of the complainant/present respondent as a compensation as provided under Section 357 of Cr.P.C.

3. The brief facts leading to the filing of the present petition is that;

3.1. The accused petitioner is a businessman, who supplies fish in the Bongaigaon Daily Market. The respondent No.2 as a complainant filed a case against the petitioner under Section 138 of N.I. Act alleging inter alia that on 10.12.2004, the petitioner borrowed a sum of Rs.1,00,000/-(Rupees One lakh) only from the complainant for the purpose of his business with a promise to return the loan amount within 2(two) months, in presence of the witness’s by executing a handnote in favour of the complainant. On 23.02.2005 in discharge of his debt, the petitioner handed over a Cheque for a sum of Rs.1,00,000/-(Rupees One lakh) only vide Cheque No. AS/90-039609 from the S.B.I Account No.11595/48 maintained with the UCO, Bank, Bongaigaon Branch to the complainant. Thereafter, the aforesaid Cheque was presented for collection through his S.B.I. Account No.36 maintained with the Indian Overseas Bank, Bongaigaon, but, the same was dishonored due to insufficient funds in the account of the petitioner. Thereafter, the complainant served an Advocate Notice on 01.03.2005 to the petitioner and requesting him to make arrangement for payment of the Cheque amount. In reply the petitioner denied the issuance of any check to the complainant on 08.03.2005.

3.2. On 04.06.2005, the complainant lodged a complaint before the Court of learned Chief Judicial Magistrate, Bongaigoan and same was transferred to the Court of learned SDJM (S), Bongaigoan for Trial. Accordingly, the learned SDJM (S), Bongaigoan took cognizance under Section 406/418/420 of IPC readwith Section 138 of N.I. Act. The prosecution had examined as many as 4 (four) witnesses in respect of the case, and also the statement of the accused petitioner has been recorded under Section 313 of Cr.P.C.

3.3. After considering the evidence on record and hearing the arguments forwarded by the learned Advocates of both sides, the learned SDJM (S), Bongaigoan passed the impugned Judgment and Order dated 17.01.2007 by convicting the accused petitioner under Section 138 of N.I. Act and also by directing him to pay a fine of Rs. 1,05,000/-(Rupees one lakh and five thousand) only in default of R.I. for 1(one) year as well as to release the complainant’s compensation as provided under Section 357 of Cr.P.C.

4. On being highly aggrieved and dissatisfied with the aforesaid Judgment and Order dated 17.01.2007 passed by the learned SDJM (S), Bongaigoan, the accused petitioner had preferred an appeal before the learned Additional Sessions Judge (FTC), Bongaigaon in Crl.Appl.No.08(I)/2007. However, the learned Trial Court had dismissed the appeal vide impugned Judgment and Order dated 29.11.2008 by upholding the Judgment and Order dated 17.01.2007 passed in CR. Case No.123/2005.

5. Being highly aggrieved and dissatisfied with the order passed by the learned Addi