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3. Mr. Joymalya Bagchi, learned advocate for the petitioner contended that the learned Magistrate did not follow the legal procedure in the trial and did not examine the accused under Section 251 of Criminal Procedure Code properly. In the examination under Section 251 of Criminal Procedure Code the learned Magistrate did not state to the accused the cheque number and its date and also date of dishonour and date of demand notice. As particulars of alleged offence or substance of accusation was not explained to the accused properly he could not prepare his defence well and was prejudiced. The learned Additional Sessions Judge did not take notice that learned Magistrate did not examine accused under Section 251 of Criminal Procedure Code in accordance with law. Both the learned Magistrate as well as the learned Additional Sessions Judge jumbled up evidence and confused themselves in appreciating evidence. Examination of accused under Section 313 Criminal Procedure Code was not proper. Learned Sessions Judge placed much reliance on exts. 4 and 6 but did not notice that during examination under Section 313 Criminal Procedure Code no question was put to the accused relating to those documents and such documents cannot be used in the judgment to base conviction.

7. Mr. Roy further submitted that in one unreported decision being CRR No. 1580 of 2002 a learned single Judge of this Court on the point of non examination of accused under Section 251 of Criminal Procedure Code refused to acquit the accused and set back the matter to the Trial Court to proceed against the petitioner from the stage of examination of accused under Section 251 of Criminal Procedure Code. In support of his contention regarding legal principles in connection with Sections 138 and 139 of the Negotiable Instruments Act Mr. Roy referred to the decisions in Hiten P. Dalal v. Bratindranath Banerjee reported in 2001 C Cr LR (SC) 554, K.N. Beena v. Muniyappan reported in 2002 C Cr LR (SC) 59 and Goa Plast (P) Ltd. v. Chico Ursula D'souza reported in 2004 C Cr LR(SC) 113.

10. The decision in Dilip Kr. Das (supra) cited by the learned advocate for petitioner is not properly applicable as in the said reported case there was defect in all respects namely, in examination under Section 251 of Criminal Procedure Code, in examination under Section 313 of Criminal Procedure Code and in failure of the learned Trial Court to appreciate the evidence including the defence evidence. The decision in Natendranath Giri (supra) is also not properly applicable in this case as in the reported case there was no examination under 251 of Criminal Procedure Code properly and, not only that, there were serious discrepancies in the evidence. In Ashita Ranjan Bose (supra) there was total failure to examine the accused under Section 242, Criminal Procedure Code of 1898 (corresponding to Section 251 of present Code) and for this reason it was held by a learned single Judge of this Court that failure to comply with Section 242 Criminal Procedure Code is a ground for setting aside trial. In Bala Seetharamaiah (supra) there was no charge at all under Section 302/149 of Indian Penal Code and ingredients of offence were not incorporated and the nature of offence was not mentioned and for this reason the Hon'ble Supreme Court observed that after such a long time it is not possible to reverse the conviction of accused under Section 326 of Indian Penal Code and substitute the conviction for offence under Section 302/149 of Indian Penal Code. In my opinion this decision is not at all applicable in the facts and circumstances of the present case. The decision in Upendranath Paul (supra) is also not applicable in this case as in the said reported case there was non compliance of provisions of Section 242 as well as Section 342 of Criminal Procedure Code, 1898 (corresponding to Sections 251 and 313 of Criminal Procedure Code, 1973.)

15. The next submission of Mr. Bagchi was that after so many years the matter should not be sent back on remand to the learned Magistrate for retrial starting from the stage of examination under Section 251 of Criminal Procedure Code. The decisions cited by him in this respect namely Jitendranath Bose (supra), Balakrishna Pillai (supra), Machander (supra), Municipal Committee, Amritswar (supra) and Bhaso Singh (supra) are not applicable in the instant case. Failure of the learned Magistrate to examine the accused petitioner under Section 251 of Criminal Procedure Code properly did not result into prejudice to him and it was not a ground to set aside the conviction. The defect, if any, was cured and removed in the trial and in examination under Section 313 of Criminal Procedure Code. In Upendranath Paul (supra) it was observed by this Court that non compliance of provisions of Section 242 of Criminal Procedure Code not have been serious if the learned Magistrate examined the accused in accordance with provisions of Section 342 of Criminal Procedure Code. In the instant case in examination under Section 251 of Criminal Procedure Code cheque number, its date, date of dishonour of the cheque and date of demand notice were not stated no doubt but, the accused faced the trial and cross-examined all the witnesses. In examination under Section 313 Criminal Procedure Code he was examined properly when the cheque number, date, fact of dishonour of the cheque as well as fact of sending demand notice by complainant through lawyer were put to him and the accused petitioner took the plea that he issued some blank cheques to the complainant. He wanted to indicate that the complainant converted one of such cheque by putting the amount and presented for encashment though he did not state in verbatim to that effect. He also took the defence that, if accounting is made he will get money from complainant. If the accused petitioner is entitled to get money from the complainant he can take necessary action in accordance with law but, that will not save him from his liability in the instant case. No question of sending back the case to learned Magistrate arises for retrial from the stage of examination under Section 251 of Criminal Procedure Code when the prosecution case has been convincingly proved.