Lakheswar Bodo vs Saurav Barman
2022 Latest Caselaw 2948 Gua

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GAHC010157842022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Crl.Rev.P./408/2022

            LAKHESWAR BODO
            S/O- LATE FANIDHAR BODO, R/O- MEGHMALAR SANTOOR APARTMENT,
            3RD FLOOR, FC-305, JAYA NAGAR, SIXTH MILE, GUWAHATI-781022, DIST.
            KAMRUP(M), ASSAM



            VERSUS

            SAURAV BARMAN
            S/O- LATE RAMENDRA BARMAN, R/O- HOUSE NO. 42, ANANDA NAGAR,
            SIX MILE, KHANAPARA, GUWAHATI, PIN- 781022, KAMRUP(M) DISTRICT,
            ASSAM



Advocate for the Petitioner   : MR. P K MUNIR

Advocate for the Respondent :




                                    BEFORE
                   HONOURABLE MR. JUSTICE MANISH CHOUDHURY
                                    ORDER

12.08.2022 Heard Mr. P.K. Munir, learned counsel for the petitioner.

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2. This criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 [Cr.P.C.] is directed against a judgment and order dated 30.06.2022 passed by the Court of learned Additional Session Judge no. 2, Kamrup [Metro] at Guwahati ['the appellate court', for short] in Criminal Appeal no. 27/2022, whereby the appellate court has affirmed the judgment and order passed by the learned Judicial Magistrate, First Class, Kamrup [Metro] at Guwahati ['the trial court', for short] in C.R. case no. 3218/2013. By the judgment and order dated 22.02.2022, the learned trial court had convicted the petitioner under Section 138, Negotiable Instruments Act, 1881, as amended, and he has been sentenced to undergo simple imprisonment for 2 [two] months and to pay compensation amount of Rs. 7,30,000/-, in default of payment of compensation, to undergo further simple imprisonment for another 1 [one] month.

4. Mr. Munir, has submitted that the conviction under Section 138 can be based on the basis of presumption incorporated under Section 139 of the Negotiable Instruments Act, 1881, as amended, but the said presumption is rebuttable one. If the debt or liability is found to be not enforceable then that presumption cannot be put into operation. He has further submitted that in the case in hand, the petitioner was able to rebut the said presumption by way of cross examination. To buttress his submissions, he has referred to the evidence adduced by the PW no. 1 more particularly, the cross examination part of the evidence of the complainant [PW1].

4.1 In the examination-in-chief, the complainant [PW1] who had substituted the original complainant-his father, had adduced to the effect that the petitioner had hired a BM Roller from his father at rate @ Rs. 55,000/- per month as rent and the accounts between the parties were settled on 17.05.2013. After settlement of accounts, an amount of Rs. 6,20,000/- was found due as on 17.05.2013, to be payable by the petitioner to the complainant-father as the hiring charge of the BM Roller. The cheque bearing no. 231175 dated 27.06.2013 for an amount of Rs. 4,26,000/- was issued by the petitioner as discharge of a part of the said liability. In the cross examination, the complainant [PW1] had submitted that he did not produce any document regarding hiring of BM Roller as nothing was available with him. In this cross examination, the complainant [PW1] further stated that he did not Page No.# 3/4

even remember the registration number of the BM Roller, though he had denied the suggestion of the respondent that his father did not have any BM Roller.

5. It is found that the learned trial court as well as by the learned appellate court had not discussed about that piece of evidence in the judgments. The judgments of the learned Courts below have only observed that because of the presumption incorporated in Section 139 of Negotiable Instrument Act, 1881, it is presumed that the dishonored cheque was issued in discharge of a debt or liability.

6. Having perused the judgments of the learned trial court as well as the appellate court and the decision of the Hon'ble Supreme Court of India in Surinder Singh Deswal vs. Virender Gandhi reported in [2019] 11 SCC 341 & Surinder Singh Deswal vs. Virender Gandhi and another reported in [2020] 2 SCC 514 wherein the Hon'ble Supreme Court of India has observed that though direction to deposit an amount under Section 148 of the Negotiable Instrument Act, 1881 Act is to be construed as a rule but in case of special reasons an exception can be carved out, if there are special reasons.

7. Notice is issued, making the same returnable in 4 [four] weeks.

9. The petitioner shall take steps for service of notice upon the respondent by registered post with A/D as well as by usual process within a period of 3 [three] days from today.

10. Having considered that part of the evidence of the complainant [PW1], as mentioned; and having noticed that both the learned Courts below have not discussed about the said part of the evidence in the judgments, the petitioner has been able to make out a prima facie case of dispensing with the direction to deposit the amount as laid down in Section 148 of the Negotiable Instrument Act, 1881, as amended. It is, provided in the interim that the execution of the sentence passed by the learned Courts below shall remain suspended till the returnable date.

JUDGE Page No.# 4/4

Comparing Assistant