IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE PRESENT:

THE HON’BLE DR. JUSTICE AJOY KUMAR MUKHERJEE CRA 285 of 2019 Shika Bhattacharjee Vs.

Sanjib Das @ Bholau For the Appellant : Mr. Subhanwita Ghosh For the respondent : Mr. Vivek Kumar Tripathi : Mr. Partha Pratim Mukhopadhyay Heard on : 25.03.2025 Judgment on : 17.06.2025 Dr. Ajoy Kumar Mukherjee, J.

1. The instant appeal has arisen against judgment and order dated 19th November 2018 passed in complaint case no. 348C of 2015 by the learned judicial magistrate 6th court Howrah. The trial court by the said impugned judgement acquitted the accused in a proceeding under section 138 of the Negotiable Instrument Act (in short N.I Act).

2. The complainant/appellant herein had preferred a complaint before the trial court contending that the accused was milk man in the complainant’s house. Due to urgent need of his business, the complainant and her husband gave Rs. 2,30,000/- to the accused on different occasion between June 2005 to December 2005 on the assurance of the accused that the same shall be returned within short span of time. The complainant’s further case is that the said amount was given to the accused on good faith and she noted all the dates on which she had paid the amount to said accused in her daily note book, which has been marked as exhibit 9 in the present case.

3. In discharge of his existing legal debts and/or liability, the accused in the first week of 2007 issued two account payee post-dated cheques being no 055459 dated 21.12.2007 for Rs. 1,50,000/- which is marked exhibit-1 and another cheque being no. 055460 dated 8.2.2008 for Rs. 80,000/- which is marked as exhibit 2 in favour of the complaint. Thereafter the complainant deposited the said account payee cheques with her banker but both the cheques were dishonoured with the endorsement “account number closed” and said cheque return memo dated 14.02.2008 and 16.02.2008 are marked as exhibit 3 and 4. The complainant/appellant herein sent demand notice under registered post with A/D card on 10.03.2008 and it was received on behalf of the accused on 24.03.2008 and copy of said notice and postal acknowledgment are marked exhibit 5, 5/1, 5/2. The allegation of the complainant is that despite receipt of the legal notice, the accused failed to pay the amount within the stipulated period and as such above mentioned complaint case was initiated by the complainant on 30th April 2008. During the course of trial, complainant examined herself as PW-1 and her husband deposed as PW-3 and one dealing assistant of Kashundia Co. Operative Bank has deposed has P.W-2. The accused/respondent was examined under section 313 Cr.P.C, where his only plea is that he is innocent. However the accused did not adduce any evidence on his behalf.

4. By the impugned judgment and order dated 19.11.2018 the court below acquitted the accused person mainly on the following grounds:-

i) Demand notice was not properly addressed and served upon the addressee/Respondent since PW-1 also admitted that she does not know the persons who received the demand notice.

ii) Exhibit 9 (Note Book of the complainant) bears lot of overwritings which does not inspire confidence iii) Exhibit 7 reflects that two different cheques were dishonoured earlier before issuance of instant cheques in question iv) Bank account of the accused became inoperative since 31.03.2006 while the cheque was allegedly issued on 21.12.2007 and

08.02.2008.

v) P.W-2, who is one of the dealing assistant of the Bank has not filed any authorization certificate and as such his evidence cannot be taken into consideration vi) The complainant stated that the accused was a milk man but she could not show any paper as to how she used to pay the cost of milk every month and it has not been explained how the complainant, who got married on 8.3.2005 had given loan to the accused within a span of 3 months vii) The trial court disbelieved exhibit 9 on various grounds out of which