Debakesh Malla Buzar Baruah vs Dipak Das And Anr
2022 Latest Caselaw 4004 Gua

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GAHC010209902022




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

                                Case No. : Crl. Rev. P./506/2022

            DEBAKESH MALLA BUZAR BARUAH
            S/O- JOGESH MALLA BUZAR BARUAH, R/O- HOUSE NO. 12,
            UPENDRALAYA SREEMANTAPUR, GUWAHATI-781032, DIST. KAMRUP(M),
            ASSAM

            VERSUS

            DIPAK DAS AND ANR
            S/O- SRI DILIP KUMAR DAS, R/O- ROY NAGAR, KARIMGANJ TOWN, P.O.,
            P.S. AND DIST. KARIMGANJ, ASSAM, PIN- 788711, ASSAM

            2:THE STATE OF ASSAM
             REPRESENTED BY THE P.P.
            ASSAM

Advocate for the Petitioner   : MS. M DEV

Advocate for the Respondent : PP, ASSAM




                                    BEFORE
                   HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                            ORDER

Date : 11.10.2022

Heard Ms. M. Dev, learned counsel for the petitioner and Ms. S.H. Bora, learned Additional Public Prosecutor for the respondent no. 2, State of Assam.

2. The instant criminal revision petition under Section 397 read with Section 401, Page No. 2/3

Code of Criminal Procedure, 1973 [CrPC] is directed against the judgment and order dated 15.07.2022 passed by the Court of Additional Sessions Judge, Karimganj ['the appellate court', for short] in Criminal Appeal no. 25[2]/2017. By the judgment and order dated 15.07.2022, the appellate court has affirmed the judgment and order of conviction and sentence dated 21.02.2017 passed by the Court of learned Additional Chief Judicial Magistrate, Karimganj ['the trial court', for short] in C.R. Case no. 1052/2014. By the said judgment and order of conviction and sentence, the learned trial court has convicted the petitioner under Section 138, Negotiable Instruments [NI] Act, 1881, as amended, and he has been sentenced to undergo simple imprisonment for 3 [three] months and to pay a fine of Rs. 18,00,000/-, in default of payment of fine, to undergo simple imprisonment for another 1 [one] month. It is further ordered that the fine amount, if realized, shall be given to the complainant-respondent no. 1 as compensation under Section 357[1][b], CrPC.

3. Ms. Dev, learned counsel for the petitioner has submitted that the complainant- respondent no. 1 had instituted the complaint case alleging that a cheque issued for a sum of Rs. 9,00,000/- by the petitioner stood dishonoured on the ground of insufficiency of fund. The complainant did not disclose the date and place of transaction either in the complaint or in his evidence. It is submitted by Ms. Dev that by cross-examining the prosecution witnesses, the accused-petitioner was able to rebut the presumptions under Section 118 and Section 139 of the Negotiable Instruments [NI] Act, 1881, as amended, which are otherwise rebuttable. It is further submitted by Ms. Dev that since the petitioner was able to rebut the presumption by cross-examining the prosecution witnesses, there was no necessity for the accused to enter the witness box to further rebut the said presumptions. It is submitted that pending further consideration, the execution of the sentence passed against the petitioner be suspended.

4. Issue notice to the respondents, returnable in 4 [four] weeks.

5. Ms. Bora has appeared and accepted notice on behalf of the respondent no. 2, no formal notice need to be issued to the said respondent.

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6. The petitioner shall take steps for service of notice upon the respondent no. 1- complainant by registered post with A/D as well as by usual process within 3 [three] working days.

7. Having regard to the evidence on record and the projections made on behalf of the petitioner, it is provided that the execution of the sentence passed against the petitioner by the learned appellate court and learned trial court shall remain suspended subject to deposit of 25% of the fine amount of Rs. 18,00,000/- ordered by the learned trial court, subsequently affirmed by the learned appellate court, i.e. Rs. 4,50,000/- before the Registry of this Court within a period of 60 [sixty] days from today. It is further provided that in the event of non-deposit of the said amount within the stipulated period of 60 [sixty] days, the interim order will stand automatically vacated.

JUDGE

Comparing Assistant