JUDGMENT Rongon Mukhopadhyay, J. - Heard Mr. Mahesh Tewari, learned counsel for the petitioner and Mr. Ram Prakash Singh, learned A.P.P. for the State. No one appears on behalf of the opposite party no. 2. 2. This application is directed against the judgment dated 31.05.2002 passed by the learned Additional Sessions Judge, IXTH, Dhanbad in Cr. Appeal no. 42 of 2001, whereby and where under the judgment and order of conviction and sentence passed in C.P. Case No. 832 of 1999, corresponding to Trial No. 1104 of 2001 by the learned Judicial Magistrate, 1st Class, Dhanbad convicting the petitioner for the offence punishable under section 138 of the Negotiable Instrument Act and sentencing him to Simple Imprisonment for six months and a fine of Rs. 5000/- has been affirmed. 3. It has been submitted by the learned counsel for the petitioner that the evidence of the complainant witnesses are contradictory to each other which fact has not been properly appreciated by the learned courts below. It has been submitted that no books of account were brought on record by the complainant in which the loan was entered. It has further been submitted that the loan in question which was given in his income tax return has not been produced. Learned counsel further submits that no case under section 138 of the Negotiable Instrument Act is made out against the petitioner. 4. Learned A.P.P. for the State on the other hand has opposed the prayer made by the petitioner. 5. It appears from the complaint petition which was filed by the opposite party no. 2 that the petitioner who was having close family ties with the complainant had approached him and requested for a loan of Rs. 10,000,00/-. The complainant had given an amount of Rs. 6,000,00/- to the petitioner in three instalments and the petitioner had further assured the complainant that the loan amount shall be repaid by December, 1998. It is alleged that the petitioner in liquidation of the loan obtained from the complainant had issued three post dated cheques drawn on Central Bank of India, Bank More Branch, Dhanbad for an amount of Rs. 6,000,00/-. It is alleged that the petitioner in liquidation of the loan obtained from the complainant had issued three post dated cheques drawn on Central Bank of India, Bank More Branch, Dhanbad for an amount of Rs. 6,000,00/-. Further allegation has been levelled that on the cheques being presented to the Banks they were dis-honored which led to service of notice upon the petitioner and failure on the part of the petitioner to make payment led to institution of a complaint case being C.P. Case No. 832 of 1999. After conducting an inquiry cognizance was taken under section 138 of the Negotiable Instruments Act and thereafter trial proceeded. 6. In course of trial five witnesses were examined on behalf of the prosecution. P.W.1 (Arbind Kumar Singh) is the brother of the complainant who has deposed that on account of family ties which existed between the complainant and the petitioner an amount of Rs. 6,000,00/- was given as loan in cash to the petitioner in presence of these witnesses Ujjawal Pal (P.W.2) and Anand Bihari Singh. P.W.2 (Ujjawal Pal) has supported the prosecution case and has stated that the petitioner had issued three post dated cheques amounting to Rs. 2,00,000/-, 2,20,000/- and Rs. 1,80,000/-. P.W.3 (Shiv Shankar Samanto) was the Assistant Manager of Bank of India, Bank More, Branch, Dhanbad. He has proved the return memos which have been marked as Exhibit-I to I/2. This witness has also proved the account opening ledger of the petitioner which was marked as Exhibit-2. He has further stated that the account of the petitioner did not have sufficient funds. P.W.4 (Arun Singh) is the complainant who has stated about the loan requested by the petitioner and the subsequent act of giving Rs. 6,000,00/- as loan in cash to the petitioner. This witness has also stated that the cheques were dis-honored on account of insufficiency of funds for which legal notice was given to the petitioner and thereafter the complaint case was filed. P.W.5 (Prem Kumar) has proved the certificate issued by the postal department pertaining to the fact that notice was delivered to the petitioner on 17.06.1999. The evidence of the witnesses on behalf of the complainant including the complainant himself has been consistent with respect to giving a loan of Rs. 6,000,00/- in cash to the petitioner by the complainant P.W.4 and the subsequent issuance of three cheques amounting to Rs. The evidence of the witnesses on behalf of the complainant including the complainant himself has been consistent with respect to giving a loan of Rs. 6,000,00/- in cash to the petitioner by the complainant P.W.4 and the subsequent issuance of three cheques amounting to Rs. 6,000,00/- which however got dis-honored on account of insufficiency of funds. The deliverance of legal notice to the petitioner has been proved by P.W.5 (Prem Kumar) and the cheque returning memos as well as the fact that the petitioner did not have sufficient funds when the cheques were presented to the Bank have all been brought on record which would suggest that the petitioner had committed an offence under section 138 of the Negotiable Instruments Act. The learned courts below had on proper appreciation of the materials available on record both oral and documentary have come to the conclusion regarding the criminal act committed by the petitioner and had sentenced him accordingly. There being no reason to conclude otherwise with respect to the conviction of the petitioner, the same is, hereby, sustained. 7. However, with respect to the sentence which has been imposed upon the petitioner is concerned since the petitioner has for sometime remained in custody out of a period of six months Simple Imprisonment the sentence is modified to the period undergone by the petitioner. With respect to the rest part of the sentence which has been awarded to the petitioner, the same is, hereby, affirmed. 8. This application is dismissed with modification only with respect to the sentence of Simple Imprisonment of six months without interfering in the rest part of the sentence so awarded.