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2015 (9) TMI 1728 - CALCUTTA HIGH COURTDishonor of Cheque - discharge of existing liability or not - acquittal of accused - there are no endorsement on the postal department on the A.D. cards - evidence of service of notice - HELD THAT:- It is true that the statement made under Section 313 Cr.P.C. is not evidence. It is only the stand of the accused or version by way of explanation when incriminating materials appearing against him are brought to his notice as decided by the Apex Court in Devender Kumar Singla [2004 (2) TMI 705 - SUPREME COURT]. In that decision it was further held that absence of any suggestion during cross-examination cannot be made up by a statement under Section 313 Cr.P.C. as at stage the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313 Cr.P.C. Whether the accused respondent in his cross-examination countered the issuance of notice issued by the Advocate of the complainant appellant? - HELD THAT:- This court is of the clear view that the accused appellant duly signed those A/D cards and as such he duly received the original notices, the photo copies of which were marked as X series for identification. It is true that photocopies are inadmissible in evidence, unless admitted, but in the instant case there was no question of production of the originals as those were in the possession of the accused respondent. As he denied the receipt of the notice there was no question of issuance of notice on him to produce the originals. This court is satisfied that the cheques (Ext.-3 series) were issued in discharge of existing liability, that the cheques bounced for different reasons as per bank memos (not in dispute) and that the notices under Section 138B were duly received by the accused respondent. Thus the judgment of acquittal passed by the trial court is fit to be reversed. Hence the respondent Dolon Adhikari is found guilty in respect of the charge punishable under Section 138 of the N.I. Act. The cheque amount was Rs. 1,40,500/- and all those were issued in the year 2010/2011. Thus, more or less five years have passed in this legal battle. The appellant is to be duly compensated. Thus, considering every aspect the accused appellant is sentenced to suffer R.I. for ten days and also to pay compensation amount under Section 357(3) of the Cr.P.C. to the tune of Rs. 1,81,000/- to be paid to the present appellant. Such compensation must be paid within one month from this day - the accused respondent must surrender before the learned trial court to serve out the sentence within 30 days from this day, failure to surrender on the part of the appellant will lead to issuance of warrant of arrest as against him by the learned trial court. Appeal allowed.
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