IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:-

HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.

CRA 681 OF 2007 TRIPURESH KUMAR DEY VS TUSHAR KANTI JANA & Anr.

For the Appellant : Mr. Sujit Mitra, Adv.

For the State : Mr. Ratul Ghosh, Adv.

For the Opposite Party no. 2 : Mr. Amitabha Karmakar, Adv.

Last heard on : 10.12.2025 Judgement on : 13.02.2026 Uploaded on : 13.02.2026 CHAITALI CHATTERJEE DAS:-

1. This is an application for special leave to file under /section 378 Sub-Section (4) of the Code of Criminal Procedure,1973 against the judgement and order of acquittal dated May, 24, 2007 passed by the Learned Metropolitan Magistrate, 4^th Court , Calcutta in case under Section 138 of the Negotiable Instrument Act.

Brief Fact

2. The present Opposite Party no. 2 took an emergency accommodation loan of Rs. 1,90,000 for his own business purpose in the following manner:-

a) On 28.04.2001 Rs. 1,00,000.00 b) On 03.05.2001 Rs. 30,000.00 c) On 14.05.2001 Rs. 60,000.00 _____________________

Rs. 1, 90, 000.00 The Opposite Party no. 2 issued receipts for such loan of Rs. 1, 90,000/- by his own hand writing. He took the said emergency loan for the purpose of prints and other miscellaneous expenses in releasing his film “Sesh Ashray” and the Opposite Party no. 2 also issued a Cheque dated June 8, 2007 being numbered 375355 in favour of the petitioner against the loan amount taken by him.

3. In re-payment of the said loan the Opposite Party no. 2 issued a cheque to the petitioner being cheque no. 375355 dated 08.06.2001 drawn on Punjab National Bank , New Market ,Branch. The petitioner deposited the said cheque in his bank on June 22, 2001 but the same was returned to the petitioner with the endorsement (insufficient fund). The petitioner intimated the Opposite Party no. 2 about the said fact of dishonour of the cheque given by him to the petitioner in discharge of his obligation to repay the loan and such intimation was given by issuing a demand notice dated 02.07.2001. By issuing such demand notice the petitioner demanded the payment of the cheque amount within 15 days from the date of receipt of the said legal notice which was duly received by the Opposite Party no, 2 on July 12, 2001.

4. It is the case of the petitioner that Opposite Party no. 2 despite receipt of such legal notice did not comply the same and did not pay to the petitioner the money against the dishonour cheque and made himself liable to be punished under Section 138 of the N. I. Act. Having no other alternative a complaint was lodged by the petitioner where Opposite Party no. 2 appeared in the proceeding and pleaded not guilty and the charge was framed and matter was tried by the Learned Metropolitan Magistrate, 4^th Court, Calcutta.

5. Before the Learned Court the Opposite Party no. 2 was examined and cross-

examined and as his defence he stated that it was given to the petitioner as security for the commission payable to the appellant/petitioner for exhibition proceeding of the said film “Sesh Ashray”, as per agreement between the parties where the petitioner was investor and no transaction of loan took place between them. Therefore there had been no dischargeable liability of the accused and hence the Opposite Party no. 2 has not committed punishable offence under Section 138 of the Negotiable Instrument Act and he is not liable to be convicted.

6. It is the further case of the petitioner that no witness was examined on behalf of the Opposite Party no. 2 excepting himself. The petitioner adduced evidence and the documents were relied upon were marked with the exhibit but the Learned Court passed the judgement and order of acquittal which is bad in law contrary to evidence on record and perverse and not sustainable in the eye of law. Accordingly this appeal has been filed with the special leave of the Court.

Submission

7. The Learned Advocate representing the petitioner submits that an amount of Rs. 1,90,000/-was given as a loan in three different cheques.