Advocates:
['HK BHOWMIK', '', 'A SAHA', 'PP', '', 'Mr K SAHA', 'Mr S LODH']

HIGH COURT OF TRIPURA

AGARTALA

Crl.A. 2 of 2021

Sri Salim Miah,

son of Lt. Moharam Ali

resident of Village- Durganagar,

PO- Durganagar, PS- Sonamura

District: Sipahijala Tripura

----Appellant(s)

Versus

1. Sri Sankar Ghosh

Proprietor of BARNIK 40 A.K. Road

PS-West Agartala, West Tripura

2. The State of Tripura

----Respondent(s)

For Appellant(s)

: Mr. H. K. Bhowmik, Adv.

For Respondent(s)

: Mr. S. Lodh, Adv.

Date of hearing &

date of passing

judgment & Order

: 21.12.2021.

Whether fit for reporting

: Yes

HON’BLE MR. JUSTICE T. AMARNATH GOUD

Judgment & Order

Heard both sides and also heard the respondent appearing

in person before this court today.

[2]

This is an appeal under Section 372 of CrPC, 1973 filed by

the appellant complainant against the impugned Judgment & order

dated 05.01.2021 passed by the Additional CJM, West Tripura Agartala,

in connection with NI 61/2010 whereby the Court has acquitted the

respondent-accused.

[3]

By the said judgment dated 05.01.2021, the following

observation has been laid down:

Page 2 of 11

“I have perused the judgments supplied by the

complainant side and the accused. Most of the judgments

are relied on by the complainant are on presumption u/s

139 NI Act and the judgment relied on by the accused side

are on the rebuttal of presumption raising question on the

economic capacity of the complainant. Before discussing

the presumption u/s 139 NI Act it is the bounden duty of

the court to inspect the provision u/s138 that has been

fulfilled by the complainant of the case. In the view of the

above settled law, as discussed in point no(1) as the legal

notice in the present case was issued beyond the

limitation period of 30 days, the present complaint is not

legally maintainable. Accordingly, in view of the facts,

evidence led by the both the parties coupled with my

discussion above, I hereby hold that all the ingredients for

the offence under Section 138 of the NI Act have not been

proved against the accused. The exact date of receipt of

information from the bank in question, the accused cannot

be held liable under Section 138 NI Act.”

[4]

Aggrieved by the said judgment and order, the appellant

preferred this revision petition. It is an admitted fact that the appellant-

complaint Salim Miah, has stated in his complaint before the trial court

that the respondent-accused took a loan of Rs.24,00,000/- from him

during August, 2009 and the said load would be treated as investment.

The

respondent-accused

and

the

complainant

are

professional

contractors. In discharge of his aforesaid liability, the respondent-

accused issued a cheque bearing No.933746 dated 28.09.2009 for a

sum of Rs.24,00,000/- drawn on State of Bank of India, Agartala

Branch,

maintained

by

the

accused

for

his

account

bearing

No.30088693216.

[5]

Thereafter,

the

appellant-complainant

presented

the

cheques with his banker for encashment on 20.02.2010, but the cheque

was dishonored by the respondent-accused’s banker with comment

“Account closed” vide return memo dated 03.03.2010. With the advent

of time, legal demand notice vide registered post dated 09.04.2020 was

Page 3 of 11

send by the complainant informing the respondent-accused to make

payment of the cheque amount in question within 15 days. The

respondent-accused on receipt of the said demand notice send a reply

denying any debt towards the complainant stating that the cheque was

missing and the same was written in the counter foil of the said cheque.

[6]

The DW1 (the accused) in his examination in chief has

deposed before the trial court that he being a business person had to

travel outside of Tripura for his official work. For better day to day

expenditure he used to keep blank signed cheques in his office and

whenever needed one of his friends Pritish Kumar De (DW2) used to

issue the same to make the p