Page No.# 1/7 vs The State Of Assam And Anr
2025 Latest Caselaw 2697 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam And Anr on 12 August, 2025

                                                                         Page No.# 1/7

GAHC010109552024




                                                                   2025:GAU-AS:10682

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

                                Case No. : Crl.Rev.P./216/2024

            MRINAL BAISHYA
            S/O NANDESWAR BAISHYA, R/O AMGURI COLONY, OPPOSITE DHOOL
            MANDIR, P.O. AND P.S.-BIJNI, DIST-CHIRANG, ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:RAJEEV VERMA
             S/O R.S. VERMA
             R/O SIMLAGURI
             P.O. AND P.S.-BARPETA ROAD
             DIST- BARPETA
             PIN-781301
            ASSA

Advocate for the Petitioner   : MR. M BISWAS, A GHOSAL,MS. A K CHOPHI,J SINGPHO

Advocate for the Respondent : PP, ASSAM, MR. G K GUPTA (R-2)
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                                 BEFORE
             HONOURABLE MRS. JUSTICE YARENJUNGLA LONGKUMER

                                       ORDER

Date : 12.08.2025

1. Heard Mr. A Ghosh, learned counsel for the petitioner. Also heard Mr. A.K Gupta, learned counsel appearing for respondent No. 2.

2. Ms. N Das, learned Additional Public Prosecutor is present.

3. The present Revision Petition under Section 397 read with Section 401 of the Cr.P.C has been filed against the judgment and order dated 15.03.2024 passed in Criminal Appeal No. 47 of 2023 passed by the Ld. Additional Sessions Judge, Barpeta, upholding the judmgnent and order dated 10.11.2023 passed by the Ld. Additional Chief Judicial Magistrate, Barpeta in N.I Case No. 149 of 2019 convicting the petitioner under Section 138 of the N.I Act, 1881 and sentencing him to undergo rigorous imprisonment for 6 months and to pay a compensation of Rs. 4,00,000/- (Rs. Four Lakhs) with a default stipulation to undergo simple imprisonment for another 4 months.

4. Mr. A Ghosh, learned counsel for the petitioner has assailed the impugned judgment and order dated 15.03.2024, specifically on the following grounds :

(i) It is submitted that the petitioner/accused had already paid Rs. 1,22,400/- in installments towards the repayment of the loan of Rs. 2,00,000/-

which was taken from the complainant/respondent No. 2 and the complainant had also admitted the receipt of such amount.

(ii) The complainant has also not been able to show that such amount was received as repayment towards a different loan. Another ground which the petitioner/accused has taken is that no evidence was adduced before the Trial Court regarding the financial capacity of the respondent/complainant.

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5. The learned counsel for the petitioner has relied on the cases of :

              (I)         John K. Abraham V. Simon C. Abraham and Another
reported in (2014) 2 SCC 236.

              (II)        Basalingappa V. Mudibasappa reported in (2019) 5
SCC 418.

              (III)         Dashrathbhai       Trikambhai       Patel     V.   Hitesh

Mahendrabhai Patel and Another reported in (2023) 1 SCC 578.

6. Relying on the above stated judgments, learned counsel for the petitioner has stated that it was incumbent on the part of the complainant to have explained his financial capacity and that it should have been proved before the Ld. Trial Court. However, the same was not done.

7. The learned counsel for the petitioner also submits that the cheque was not sent for handwriting analysis to the forensic laboratory and as such, it has not been proved, in accordance with law. The learned counsel for the petitioner, therefore, prays that the impugned judgment and order dated 15.03.2024 may be quashed and set aside.

8. Mr. A.K Gupta, learned counsel appearing for respondent No. 2 has submitted that the loan of Rs. 2,00,000/- made to the petitioner/accused was done by way of cheque and it has been admittedly received and therefore, the question of financial capacity can only be invoked when there is a dispute about the receipt of the loan amount. However, in the present case, there is no such dispute as the amount of Rs. 2,00,000/- has already been received by the petitioner/accused and the same is not disputed.

9. Mr. A.K Gupta, learned counsel appearing for respondent No. 2 also submits that when the demand notice was served on the petitioner/accused, they had not stated anything about making any part payments towards repayment of the loan and Page No.# 4/7

therefore, the complainant/respondent No. 2 had no other alternative but to approach the Court.

10. Mr. A.K Gupta, learned counsel appearing for respondent No. 2 has also drawn the attention of the Court to paragraphs 28, 29, 30 & 31 of the impugned judgment and order dated 15.03.2024 wherein the Ld. Trial Court has observed that the alleged first payment towards the loan was made on 07.08.2019. However, the loan was advanced on 10.08.2019 and therefore, it cannot be stated that the said part payment made on 07.08.2019 was made in discharge of the loan in question. The Ld. Trial Court also observed that no payment was made since the date of issuance of cheque till the date of presentation of the cheque, and therefore, the offence under Section 138 of the NI Act had already been committed and subsequent part payments would not absolve the petitioner/accused of his liability under Section 138 of the NI Act. The learned counsel appearing for respondent No. 2 therefore, submits that there is no illegality in the impugned judgment and order and prays that the same may be upheld by this Court.

11. The Court has considered the submissions of the learned counsel of both parties and also perused the pleadings as well as the Trial Court Records.

12. The perusal of the facts in this petition shows that the complainant/respondent No. 2 had filed the complaint under Section 138 of the NI Act, 1881 alleging that the petitioner/accused was known to him and they had a friendly relationship and the petitioner/accused approached him and asked him for a loan of Rs. 2,00,000/- promising that he would repay the loan within 3 months. The loan was given to the petitioner/accused on 10.08.2019 and this fact is not disputed. However, after a lapse of 3 months the petitioner/accused did not repay the loan and on 10.11.2019, the petitioner/accused handed a cheque bearing no. 141039 dated 15.11.2019 for Rs. 2,00,000/- drawn in his account at State Bank of India, Bishnupur branch issued in favor the complainant/respondent No. 2 towards repayment of the Page No.# 5/7

loan and accordingly, the complainant/respondent No. 2 deposited the cheque, but it was returned unpaid on 28.11.2019 with the endorsement that the cheque could not be honoured due to insufficient funds.

13. It is also not disputed that the complainant issued a demand notice to the petitioner/accused to pay the amount of the cheque. But even after receipt of the notice, the petitioner/accused did not pay the loan amount. Hence, the complainant/respondent No. 2 had filed the complaint under Section 138 of the NI Act, 1881.

14. The Ld. Trial Court in Criminal Appeal No. 47/2023 by the judgment dated 15.03.2024 after appreciating the evidence and upon hearing the parties has held that the complainant had admittedly received the total amount of Rs. 1,22,400/- from the accused on as many as 5 installments and the said installments were dated 07.08.2019, 19.02.2020, 15.07.2020, 16.08.2020 and 18.11.2020. It is also observed that the first installment of Rs. 14,400/- was received on 07.08.2019 whereas, the loan of Rs. 2,00,000/- was admittedly given on 10.08.2019 and as such, the payment of Rs. Rs. 14,400/- could not have been a repayment of the loan of Rs. 2,00,000/- which was received by the petitioner/accused on 10.08.2019.

15. The Ld. Court below has also observed that the remaining installments were allegedly paid on 19.02.2020, 15.07.2020, 16.08.2020 and 18.11.2020 and all the above payments were made after the cheque was already presented to the bank on 28.11.2019 and therefore, there is no legal requirement that the cheque ought to have been endorsed.

16. It is the observation of the Ld. Trial Court that the instant complaint was filed on 21.12.2019 and therefore, all the 4 installments/payments were made during the pendency of the case.

17. The Ld. Trial Court, therefore, came to the finding that no payment was made since the date of issuance of the cheque till the date of presentation of the Page No.# 6/7

cheque and therefore, the offence under Section 138 of the NI Act, 1881 had already been committed and subsequent part payments would not absolve the accused of his liability under Section 138 of the NI Act, 1881.

18. This Court is unable to agree with the submission of the petitioner that the complainant had to prove his financial capacity before the Ld. Trial Court. It is an admitted fact that the petitioner/accused had already received the amount of Rs. 2,00,000/- as loan from the complainant and in such a situation, there is no necessity for the complainant to prove his financial capacity of lending the amount of Rs. 2,00,000/-.

19. This Court has also noted the dates on which the alleged repayment was made on 07.08.2019 whereas, the loan amount of Rs. 2,00,000/- was received by the petitioner/accused on 10.08.2019. Therefore, it is not possible that the payment made on 07.08.2019 was towards the repayment of a loan which was received only on 10.08.2019. This Court has also observed that all the remaining installments which were allegedly paid by the accused towards the repayment of the loan were made after the cheque was already presented to the bank on 28.11.2019.

20. The complainant/respondent No. 2 had specifically stated before the Ld. Trial Court that the payments made by the accused were repayment made for other liabilities and not towards the repayment of the loan amount of Rs. 2,00,000/- and the accused had also failed to produce any material/evidence to show that the payment made by him were related to the part payment towards the loan of Rs. 2,00,000/-.

21. This Court therefore, finds no illegality or perversity in the impugned judgment and order dated 15.03.2024 and accordingly, the petition is dismissed.

22. The Interim order passed on 07.06.2024 is hereby vacated. However, the Ld. Trial Court shall take into consideration the fact that the petitioner/accused has already deposited the amount of Rs. 80,000/- out of the total fine amount of Rs. 4,00,000/- at the time of recovery.

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23. Send back the T.C.R along with a copy of this order to the Ld. Additional Sessions Judge, Barpeta.

24. Petition stands disposed of.

JUDGE

Comparing Assistant