Gauhati High Court
Sri Surajit Bose vs The State Of Assam And Anr on 27 January, 2021
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GAHC010183792018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./315/2018
SRI SURAJIT BOSE
ARYAN TRADING, C/O- MAHAMAYA TRADERS, R/O- RUBBER BAGAN
(OPP. IRRIGATION COLONY) P.S. TEZPUR, PIN- 784001, DIST- SONITPUR,
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P., ASSAM
2:M/S YASH ENTERPRISE
REP. BY SRI SANJAY KUMAR JAIN
A.K.AZAD ROAD
REHABARI
P.S. PALTAN BAZAR
GHY-8
DIST- KAMRUP (M)
ASSA
Advocate for the Petitioner : MR. R P HAZARIKA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
ORDER
Date : 27-01-2021
Heard Mr. R.P. Hazarikia, learned counsel for the petitioner and Mr. K. Bhattacharjee,
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learned counsel for the respondent No. 2.
2. As agreed by the learned counsel for both the sides, this revision petition is taken up
for disposal at the stage of admission.
3. This revision petition is directed against the judgment and order dated 09-07-2018
passed by the learned Additional Sessions Judge(FTC) No. 4, Kamrup(M) in Crl. Appeal. No.
239/2016, whereby, the learned Sessions Judge upheld and confirmed the conviction and
sentence of the present revision petitioner. The petitioner was convicted u/s Section 138 of
the Negotiable Instrument Act and sentenced to undergo simple imprisonment for 18 months
and pay compensation of Rs. 11 lakhs, in default, to undergo simple imprisonment for
another 10 months.
4. The only point raised in this revision petition is that the petitioner herein paid Rs. 4
lakhs and Rs. 2, 48,000/- respectively to the respondent/complainant in discharge of debt
relating to the cheque in question, which was not considered by the learned Sessions Judge.
5. The brief facts of the case, which may be relevant for disposal of this matter are that
the petitioner purchased cement from the complainant firm and in discharge of liability
towards payment arising out of such transaction, the petitioner issued a cheque bearing No.
844122 dated 3.09.2008 for an amount of Rs. 6,84,750/-. The cheque was deposited in bank
of the drawee. Upon dishonor of the cheque the petitioner instituted a complaint under the
N.I. Act, inasmuch as, after receipt of the notice of demand, the petitioner did not pay the
cheque amount.
6. It is the submission of the learned counsel for the petitioner that the petitioner
discharged his liability against the cheque by way of payment of Rs. 4 lakhs on 14-01-2008
and Rs. 2,48,000/-.
7. It reveals from the record that there were business transaction between the parties
and the learned sessions Judge has addressed the above issue in the judgment in point No.
(II) as under :
"(II) The accused during his evidence has admittedly stated that he had
business transaction with the complainant as they purchased cement
from the complainant and issued five blank cheques to the complainant
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as security and Ext. 1 is one of those cheque. Accused in his examination
u/s 313 Cr.P.C. has contended that he purchased cement but value of
cement purchased by him was less than the said amount, but he cannot
say the actual amount. On the other hand, during evidence as DW-1 he
stated that on 14.5.08 they paid Rs. 4,00,000/- to the complainant. DW-1
exhibited the bank statement as Ext. 1. Ext. A (1) is the relevant entry
regarding the payment of Rs. 4,00,000/-. DW-1 further stated that he
had also paid Rs. 2,48,000/- to the complainant through his agent but he
cannot say the name of the said agent nor could remember the date. t
It appears that accused made contradictory versions during his evidence
as well as in his examination u/s 313 CrPC. He himself took two self-
contradictory pleas and the same cannot be believable and trust-worthy
at all. Again, on perusal of Ext.1 as well as Ext. A(1), it appears that
Ext.A91) does not disclose as to when the said payment has been made.
Hence, it cannot be said that said payment was made by the accused in
discharge of legally enforceable debt and liability. Though the accused
took the plea that he had paid another amount of Rs. 2,84,000/- to the
complainant through his agent, but accused has failed to say even the
name of the agent nor adduce any other material evidence in support of
his plea.
From the discussions made so far, it appears that the accused has
admitted the cheque but has denied any liability in favour of the
complainant."
8. From the above discussion and observation of the learned Sessions Judge, it is
abundantly clear that the learned court has taken into account the claim of the petitioner with
regard to payment of Rs. 4 lakhs and Rs. 2,48,000/- respectively, and on the basis of the
evidence and materials brought on record, learned Sessions Judge held that the petitioner
failed to substantiate his claim that the aforesaid amount was paid in discharge of the liability
against the cheque amount. The above finding of the learned Sessions Judge upon due
analysis of the evidence on record, in my considered view, has not suffered from any
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illegality, impropriety or perversity requiring interference by this Court, inasmuch as while
exercising revisional power on a factual matter, after the concurrent findings on facts arrived
at by both the courts below, the revisional court cannot re-appreciate the evidence nor it is
desirable to re-appreciate the evidence on facts.
9. Since there is no dispute as regard issuance of cheque which raises a presumption in
favour of the complaint u/s 139 of the N.I. Act and that the claim of the petitioner put up by
way of defence fails, I find no force in the submission of the learned counsel for the
petitioner. Therefore, this revision is found to be devoid of merit and stands dismissed.
JUDGE
Comparing Assistant
