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friends. The Petitioner, in order to purchase a Tractor with Trailor availed loan from the bank but could not repay the same within the // 2 // stipulated period. He accordingly approached the complainant/ respondent to accommodate him with a friendly loan of Rs.43,000/- for repayment of the loan incurred by him from the bank. The complainant/ respondent reciprocating the gesture of friendship agreed and paid a sum of Rs.43,000/- to the Petitioner/ accused towards a friendly loan. The Petitioner had promised to pay back the said amount at the time of need of the complainant/ respondent. On 25th December, 2006 the complainant/respondent requested the Petitioner/accused for repayment of the amount taken towards friendly loan. The Petitioner/accused could not repay the loan, however, on the request of the respondent, the Petitioner issued the cheque bearing No.403806 dated 26th December, 2006 for the sum of Rs.43,000/- in favour of the respondent drawn on State Bank of India (ADB) Branch, Aska against his account No.01170070397.

4. The respondent presented the said cheque with his banker i.e. Rushikulya Gramya Bank, Aska Branch to credit the cheque amount to his account. On 1st June, 2007 the banker of the respondent intimated the complainant about the dishonour of the cheque on the ground of "insufficiency of fund" in the account of the Petitioner. Soon after the receipt of the intimation slip from the bank and the return of the cheque, on 11th June, 2007 the respondent issued a legal notice to the Petitioner accused through his Pleader demanding the dishonoured cheque amount within the statutory period i.e. 15 days of receipt of the demand.

6. As reveals from the case record, the Petitioner being aggrieved by the judgment and order dated 26th July, 2012 of the learned J.M.F.C., Aska preferred the appeal before the Additional Sessions Judge, Aska. The learned Additional Sessions Judge, Aska having reassessed the evidence concurred with the findings of the learned J.M.F.C., Aska and dismissed the Appeal, being aggrieved whereof the Petitioner preferred the present revision.

7. Mr. Panda, learned counsel for the Petitioner in course of the hearing in the revision while did not dispute the statutory compliance in respect to the issuance of cheque, its presentation, dishonour of the same, the legal notice and the complaint as laid from the side of the complainant, disputed the punishment awarded by the learned J.M.F.C. as concurred by the learned Additional Sessions Judge, Aska. According to Mr. Panda, the learned court below did not adhere to the provision of the offence under Section 138 N.I. Act in respect to the punishment provided there under and committed an illegality by awarding substantive sentence as well as compensation in terms of Section 357(3) Cr.P.C when fine was part of the punishment. Mr. Panda relied upon the decision of the Apex Court in the case of R. Vijayan vrs. Baby and another reported in AIR 2012 SC 528.