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18.02.2026

Item No.8

Ct. No. 34

nb

CRR 3546 of 2012

In the matter of: Sri Parimal Chakraborty,

...… petitioner.

Mr. Priyankar Ganguly,

Mr. Amaan Deep Gupta,

.…For the petitioner.

Ms. Suparna Chatterjee,

….The amicus curie.

1. This revisional application has been filed under section

482 of the Code of Criminal Procedure challenging the judgment

and order dated 31.8.2012 passed by the learned Additional

Sessions Judge, Fast Track 6th Court at Alipore in Criminal

Appeal no.44 of 2006 arising out of Judgment and conviction

and order of sentence dated July 31, 2006 passed by the learned

Chief Judicial Magistrate at Alipore in connection with the

complaint case no.1934 /2000 under Section 138 of the N.I. Act.

2. The fact of the case in a nutshell is that, the petitioner was

arraigned an accused in connection with the complaint case

registered being registered under Section 138 of the N.I. Act filed

before the Chief Judicial Magistrate at Alipore alleging, inter alia

that the accused/petitioner received an excess amount of

Rs.1,00,984/- in order to pay back the said amount arising out

of the transaction and the petitioner had issued an account

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payee cheque of Rs.1 lac vide no.128546 drawn on Central Bank

of India, Jadavpore Branch in favour of complainant/opposite

party. The said cheque was placed after one month for

encashment on 15.5.2000 to his banker A.N.Z. Grindlays Bank

at New Alipore but it was returned on the same day with the

Memo of the bank intimating ‘payment stopped’ by the drawer

and accordingly it was dishonored.

3. The petitioner deposed as P.W.1 and was also examined

under Section 313 Cr. P.C. After the demand notice was served

and received by the petitioner, the complaint was initiated and

accordingly the proceeding was started. The learned Trial Court

after hearing of the parties and assessing evidences adduced

before the Court passed the order and conviction against the

present petitioner and sentenced him to fine of Rs. 5,000/- in

default to suffer simple imprisonment for six months and further

directed to pay compensation of Rs.1, 50,000/- under Section

357 of the Code of Criminal Procedure to the complainant within

two months from the date.

4. The petitioner challenged the said judgment and order of

conviction before the learned Court and the learned appellate

Court also considering the facts and circumstances, affirmed the

said order of conviction by delivering the judgment on 31.8.2012.

5. Being aggrieved thereof, this revisional application was

filed in the year 2012. The matter was admitted and kept

pending since long. However, the interim order as granted at the

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initial stage was not extended subsequently. On several

occasions, an attempt was made to serve notice upon the

opposite party no.2. None appeared to represent the respondent.

Accordingly, Ms. Suparna Chatterjee was appointed as amicus

curie to assist the Court in this case.

6. It is submitted by the learned counsel representing the

petitioner that the learned sessions Judge did not apply his

judicial mind and decided without appreciating the evidence in

its true perspective. It ought to have been considered that both

Sections 138 and 139 of the N.I. Act required that the Court

“shall presume” giving liberty of the drawer of the cheques for the

amount for which the cheques are drawn and it is obligatory on

the Court to raise presumption in every case whether the factual

basis for raising of the presumption has been established.

7. It is further submitted that the learned Court in order to

appreciate the authority shows that even when the cheque was

dishonored by reason of stop payment instruction, by virtue of

Section 139 it is to be presumed the cheque was issued for in

order to discharge the whole or in part, of any debt or number.

No such evidence was adduced on behalf of the

appellant/accused that it was in discharge any legal date or

liability however such presumption is rebuttable and the onus

shifted upon the accused to rebut the same and this was not

followed. Hence, prays for set