Gauhati High Court
Nipan Goswami vs The State Of Assam And Anr on 11 February, 2021
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GAHC010051242017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.L.P./108/2017
NIPAN GOSWAMI
S/O LATE UMESH CHANDRA GOSWAMI, R/O PNC ROAD, OWNER OF
ANNALAY GROCERY SHOP, NALBARI TOWN, MOUZA KHATA, P.S.
NALBARI, DIST. NALBARI, AASAM.
VERSUS
THE STATE OF ASSAM and ANR
2:ACHYUT KR. SARMA
S/O NAGENDRA NATH DEV SARMA
C/O VILL. SRI PARESH MAHANTA NEAR SURESH MISHRA
VILL. NALBARI GAON ARYA BIDYALAYA BY LANE
MOUZA KHATA
P.S. NALBARI
DIST. NALBARI
Advocate for the Petitioner : MR. D PEGU
Advocate for the Respondent : PP, ASSAM
Linked Case :
SRI NIPON GOSWAMI
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VERSUS
THE STATE OF ASSAM and ANR
2:MISS LIZA NATH MINOR
REPRESENTED BY MOTHER/RESPONDENT NO.1. BOTH ARE R/O VILL-
RAHALI
MOUZA- NOWBOICHA
P.S. NOWBOICHA
DIST. LAKHIMPUR
ASSAM. PIN- 787001.
------------
Advocate for :
Advocate for : appearing for THE STATE OF ASSAM and ANR
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 11-02-2021
Heard Mr. J. Kalita, learned counsel for the applicant. Also heard Mr. B.B. Gogoi,
learned Addl. P.P., Assam appearing for the State/respondent No. 1 and Mr. J.I. Borbhuiya,
learned counsel for the respondent No. 2.
By this application under Section 378(4) read with Section 482 Cr.P.C., the applicant is
seeking leave to prefer an appeal against the judgment and order of acquittal of the
respondent No. 2, dated 06.10.2017, passed by the learned Additional Chief Judicial
Magistrate, Nalbari, Assam in N.I. Case No. 93/2015 under Section 138 of the N.I. Act, 1881.
The applicant's case, in brief, is that on 18.03.2010, the respondent No. 2 took a loan
of Rs.3 Lacs from the applicant by duly acknowledging the receipt of the same in presence of
witnesses with promise to repay the same along with some benefit as soon as he received
bills of his contract works. After repeated request and demand of the applicant, the
respondent No. 2 issued a cheque of Assam Gramin Vikash Bank, Nalbari, on 04.09.2015,
amounting to Rs.3 Lacs to the applicant against his account No. 126635. The applicant
presented the cheque for encashment in his account of Assam Gramin Vikash Bank, Nalbari
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Branch, Assam, but the same was returned dishonoured on 22.09.2015 on the ground of
"Insufficient fund". Therefore, he issued a legal notice on 23.09.2015 to the respondent No. 2
demanding repayment of the said cheque amount, within 15 days from the date of receipt of
the notice, which had been received by his wife on 24.09.2015. However, the respondent No.
2 did not repay the loan (cheque) amount payable to the applicant. Having exhausted all the
efforts to recover the loan amount, the applicant filed N.I. Case No. 93/15 under Section 138
of the N.I. Act in the Court of the learned Chief Judicial Magistrate, Nalbari against the
respondent No. 2. The said case was transferred to the Court of learned Addl. Chief Judicial
Magistrate, Nalbari for trial. Accordingly, after completion of trial of the case and appreciation
of evidence on record, the learned Addl. Chief Judicial Magistrate, Nalbari by judgment and
order, dated 06.10.2017, passed in the said N.I. Case No. 93/2015 acquitted the respondent
No. 2 of the offence under Section 138 of the N.I. Act. Being aggrieved, the applicant is
seeking leave to appeal against the said judgment and order of acquittal of the respondent
No. 2.
Mr. J. Kalita, learned counsel for the applicant submits that a perusal of the judgment
and order of acquittal in question reveals that the learned trial Court failed to appreciate the
evidence in proper perspective and arrived at a perverse finding leading to miscarriage of
justice. Mr. Kalita further submits that the learned trial Court failed to appreciate and draw the
statutory presumption under Sections 118 and 139 of he N.I. Act and admissions in evidence
by the respondent that he is yet to pay Rs.75,000/- to the applicant and further, his signature
and handwriting in Ext. 1, the cheque.
Per contra, Mr. J.I. Borbhuirya, learned counsel appearing for the respondent No. 2
submits that the learned trial Court on proper appreciation of the evidence of both sides
based on the ingredients of the offence under Section 138 of the N.I. Act has validly/rightly
acquitted the respondent No. 2 and as such, there are no good grounds for preferring an
appeal against the said judgment and order of acquittal. Mr. Borbhuiya further submits that
the learned trial Court rightly held that it was a time barred debt under Section 25(3) and did
not satisfy Section 25 of the Indian Contract Act. Hence, Mr. Borbhuiya vehemently submits
that the application filed by the applicant being devoid of any merit, the same deserves
dismissal.
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I have carefully considered the above submissions made by the learned counsel of
both sides and perused records including the impugned order of acquittal.
A perusal of the order of acquittal of the respondent No. 2, it transpires, inter-alia, that
the learned trial Court decided 4 number of core points based on the facts alleged by the
complainant/applicant herein and counter facts raised by the accused/respondent No. 2
herein. The learned trial Court after critically analysing the evidence in detail, oral and
documentary, arrived at an inference that the debt in question was time-barred under Section
25(3) of the Indian Contract Act, when the cheque was issued on 04.09.2015 after 5 (five)
years from the date of loan given to the accused amounting to Rs.3 lacs on 18.03.2010 and
there was not even any promise to return the said amount pertaining to the previous debt.
Therefore, the learned trial Court held that the complainant/applicant failed to establish that
the cheque vide Ext. 1 was issued in pursuance of a legally enforceable debt. Thus, it is
noticed that there is prima facie nothing patently wrong and wholly unsustainable reasons in
the above judgment and order of acquittal of the accused/respondent No. 2 under Section
138 of the N.I. Act, which may be termed as compelling and substantial reasons for
interference /further evaluation of evidence on merits in appeal by way of granting special
leave to appeal under Section 378(4) read with Section 482 Cr.P.C.
The application being devoid of merits, the same stands dismissed.
Accordingly, the leave application stands disposed of.
JUDGE
Comparing Assistant
