JUDGMENT :

Sanjay Prasad, J.

The present Criminal Revision Application has been filed on behalf of the petitioner by challenging the judgment dated 02.12.2016 passed by the learned Sessions Judge, Lohardaga in Criminal Appeal No.21 of 2016, by which, the said Criminal Appeal has been dismissed with the modification in sentence by which the appellant has been directed to pay a compensation amount of Rs.7,00,000/- within 30 days from the date of passing of the order, failing which, the compensation amount is to be realized from the movable or immovable properties of the appellant and in default of payment of compensation amount within stipulated time, the appellant will undergo Simple Imprisonment for a period of 1 and ½ years apart from the realization of the compensation amount from his movable or immovable properties, although vide judgment of conviction and order of sentence dated 05.02.2016 passed by Sri Shekhar Kumar, learned Judicial Magistrate, 1st Class, Lohardaga in connection with Complaint Case No.201/2012, the petitioner has been convicted for the offence under Section 138 of the N.I. Act and has been sentenced to undergo Rigorous Imprisonment for a period of (02) two years and to pay a compensation amount of Rs.7,00,000/- to the complainant by the Judicial Magistrate.

2. The case of the complainant, in brief, is that the complainant is the Owner of Rudra Enterprises and he is engaged in the business of sale of cement, iron-rod and other building materials. It is further stated that the complainant had supplied materials to the accused-petitioner and Rs.5,35,000/- was due against the accused in lieu of materials supplied by the complainant. It is further stated that on 31.07.2012, the accused-petitioner came to the shop of the complainant which is situated at Block More, Lohardaga and handed over two cheques bearing Cheque Nos.045454 & 045455 for the amount of Rs.4,25,000/- and Rs.1,10,000/- respectively. It is also stated that both the cheques were deposited by the complainant but the same were dishonored vide cheque return memo dated 06.09.2012 due to “insufficient fund”. Subsequently, a legal demand notice was sent to the accused-petitioner on 14.09.2012 through registered post, but the petitioner to pay the cheque amount and finally on 12.10.2012, the complaint case was filed.

3. Heard Mr. Nilesh Kumar, learned counsel for the petitioner and Mr. Someshwar Roy, learned counsel for the State. However, none had appeared on behalf of the O.P No.2, although notices were issued upon the O.P. No.2 vide order dated 31.07.2017 and order dated 28.06.2022 respectively.

4. It is submitted by the learned counsel for the petitioner that the judgments and order passed by the learned Court below are illegal and not sustainable in the eyes of law. It is further submitted that learned Courts below ought to have considered that the notice as envisaged under Section 138 (2) of the N.I. Act, 1938 as amended up to date, has not been served upon the petitioner and there is no material A/D available on record to show that the notice has been served upon the petitioner and on this basis the judgment passed by the learned Sessions Judge is liable to be set-aside. It is further submitted that the cheques in question were not issued in discharge of legal liabilities and debts. It is further submitted that the complainant failed to prove any chit of paper regarding purchase of cement by the petitioner. It is further submitted that the learned Court below ought to have considered that the cheque in question has been misused by the complainant because the same had been presented before the Bank by writing the date on it, although on the alleged date there was no liability of the petitioner towards the complainant. It is further submitted that the learned Court below failed to appreciate Ext.-A, which is the certified copy of F.I.R. of Jobang P.S. Case No.01/2012 which was lodged by the petitioner for faulty construction of bridge in which bogus