Page No.# 1/14 vs The State Of Assam And Anr
2025 Latest Caselaw 3566 Gua

Gauhati High Court

Page No.# 1/14 vs The State Of Assam And Anr on 28 February, 2025

                                                                    Page No.# 1/14

GAHC010317082019




                                                              2025:GAU-AS:2121

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

                        Case No. : Crl.Rev.P./12/2020

         TAPADHIR KANTI DAS
         S/O LT. SIRISH CHANDRE DAS, R/O SONAI ROAD, SILCHAR, P.O. AND P.S.-
         SILCHAR, DIST-CACHAR, ASSAM, PIN-788001



         VERSUS

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

         2:BIKASH BHUYA
          S/O LT. BINOD BIHARI BHUYA
          R/O BHUYA ROAD
          JANIGANJ
          P.O. AND P.S.-SILCHAR
          DIST-CACHAR
         ASSAM
          PIN-788001

         3:ON THE DEATH OF BIKASH BHUYA
          HIS LEGAL HEIRS
          NAMELY
          CACHAR

         4:SMTI SEFALI BHUIYA
          D/O LATE BINODE BIHARI BHUIYA
          R/O BHUYA ROAD
          JANIGANJ
          P.O. AND P.S.-SILCHAR
          DIST.-CACHAR (ASSAM)
          PIN-788001.

         5:SHRI BIDYUT KUMAR BHUIYA
                                                             Page No.# 2/14

             S/O LATE BINODE BIHARI BHUIYA
             R/O FLAT-C 202
             PRISTINE GRANDEUR
             WAKED
             PUNE-411057.

            6:SMTI KAJAL SAHA
             D/O LATE BINODE BIHARI BHUIYA
             R/O SACHIN ENCLAVE
             SOLAPARA ROAD
             GUWAHATI-781008.

            7:SHRI BIMAL KUMAR BHUIYA
             S/O LATE BINODE BIHARI BHUIYA
             R/O 18/80
             DOVERLANE
             GARIAHAT
             KOLKATA-700029.

            8:SHRI BIDHAN CHANDRA BHUIYA
             S/O LATE BINODE BIHARI BHUIYA
             R/O BHUYA ROAD
             JANIGANJ
             P.O. AND P.S.-SILCHAR
             DIST.-CACHAR (ASSAM)
             PIN-788001.

            9:SMTI ANJALI SAHA
             D/O LATE BINODE BIHARI BHUIYA
             R/O NAIPUKAR
             OPPOSITE OF SUHASINI APARTMENT
             RAJARHAT
             KOLKATA-700156

Advocate for the Petitioner   : MR. M H RAJBARBHUIYAN

Advocate for the Respondent : PP, ASSAM, MR. P K DEKA [2]

Page No.# 3/14

BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA

Date of hearing : 12.12.2024 Date of Judgment : 28.02.2025

JUDGMENT & ORDER (CAV)

Heard Mr. M. H. Rajbarbhuiyan, learned counsel for the petitioner. Also heard Ms. S. H. Borah, learned Additional Public Prosecutor for the State respondent No.1 and Mr. P. K. Deka, learned counsel for the respondent No.2.

2. This application is filed under Section 397 of the Code of Criminal Procedure, 1973, read with Section 482 of the Cr. P.C., challenging the impugned Judgment and Order dated 18.11.2019, passed by the learned Sessions Judge, Cachar, Silchar in Crl. Appeal Case No. 40/2018. The Judgment affirmed and upheld the impugned Judgment and Order dated 20.11.2018 passed by the learned Chief Judicial Magistrate, Cachar, Silchar in N.I. Case No. 78/2010, which was registered under Section 138 of the N.I. Act. The order established the petitioner's guilt under Section 138 of the N.I. Act and imposed a fine of Rs. 6,00,000/- (Rupees six lakhs) only, including a lump sum interest amount, payable to the complainant/respondent No.2. In default of payment, the petitioner is liable to undergo 6(six) months of rigorous imprisonment.

3. The brief facts of the case are as follows:

3.1. The petitioner and respondent No. 2 are both businessmen of good repute in Silchar and had a history of lending and borrowing money from each other. In May 2010, facing a financial crisis, the petitioner asked Rs. 6,00,000/- (Rupees six lakhs) only from the respondent No.2, with an assurance to repay the amount promptly. On 01.06.2010, the respondent No.2 paid the petitioner Rs.

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6,60,000/- (Rupees six lakhs sixty thousand) only, in the presence of one Sri Chandan Pal. After a few days, the petitioner issued a cheque for Rs. 6,60,000/- (Cheque No. 0300071, dated 09.09.2010) to the respondent No.2, in presence of said Sri Chandan Pala and also requested the respondent No.2 to present the said cheque in Assam Gramin Vikas Bank, Silchar after three months, when sufficient funds would be available in his account. However, when the respondent No.2 presented the cheque for payment, it was dishonored due to insufficient funds in the petitioner's account. The respondent No.2 served a legal notice as per the N.I Act, but the petitioner denied any liability. Subsequently, he filed a case under the N.I Act before the Chief Judicial Magistrate, Cachar, Silchar.

3.2. The petitioner's defence was that the debt had been repaid, and the respondent No.2 had issued a receipt for the payment but failed to return the dishonored cheque, claiming it was misplaced. During the trial, the respondent No.2 examined two witnesses and submitted the dishonored cheque, the return memo, the demand notice, and the postal documents. The petitioner relied on Exhibits- A, B, and C and a handwriting expert's report. As per handwriting expert the respondent's No.2 signature appeared on Exhibit C (a receipt), which the respondent No.2 denied. The petitioner contended that he proved during the trial that he repaid the loan, but the learned Trial Court did not appreciate his defence and found the petitioner guilty under Section 138 of the N.I Act. The Court noted that the respondent No.2 had received partial payments of Rs. 40,000/-(Rupees forty thousand) only on 04.11.2013, Rs. 1,60,000/- (Rupees one lakh sixty thousand) only on 28.08.2013, and Rs. 50,000/- (Rupees fifty thousand) only via demand draft on 08.10.2013, totaling Rs. 2,50,000/- (Rupees two lakhs fifty thousand) only. The petitioner contends that he had repaid the Page No.# 5/14

entire amount, as evidenced by the receipt signed by the complainant/respondent No.2, which was verified by a handwriting expert. However, the learned Trial Court rejected this evidence and passed the impugned judgment dated 20.11.2018, directing the petitioner to pay Rs. 6,00,000/- (minus Rs. 2.5 lakhs) towards interest and, in default, to undergo 6 (six) months of rigorous imprisonment.

3.3. Dissatisfied with the aforesaid judgment dated 20.11.2018, the petitioner preferred an appeal before the learned Sessions Judge in Crl. Appl. No. 40/2018, challenging the legality and validity of the decision and the said Court upheld the conviction under Section 138 of the N.I Act and directed the petitioner to make payment within 60 (sixty) days from the Judgment and Order dated 18.11.2019, or surrender to serve out the sentences as ordered.

4. Being highly aggrieved and dissatisfied with the impugned judgment and order dated 18.11.2019, the petitioner has filed this revision petition challenging the validity of the Judgment and Order dated 18.11.2019, passed by the learned Sessions Judge, Cachar, Silchar, in Crl. Appeal Case No. 40/2018, which upheld the Judgment and Order dated 20.11.2018 passed by the learned Chief Judicial Magistrate, Cachar, Silchar in N.I. Case No. 78/2010.

5. Mr. Rajbarhuiyan, learned counsel for the petitioner has submitted that the Courts below committed significant errors in law and fact while deciding the case. As a result, they wrongly convicted and sentenced the petitioner, making the impugned judgments subject to interference, quashing, and setting aside. The Trial Court failed to properly examine the petitioner under Section 313 of Cr.P.C., rendering the entire trial invalid. The learned Appellate Court also overlooked this issue, making the judgments untenable in law. Furthermore, the Page No.# 6/14

Courts below, particularly the Trial Court, failed to properly assess the evidence and materials on record. The learned Sessions Judge also failed to consider this issue on appeal. The two prosecution witnesses were neither natural nor independent, yet the Courts relied on them without adequate judicial reasoning, which adversely affected the petitioner and rendered the judgments unsustainable in law.

6. He further submitted that the learned Trial and Appellate Courts wrongly interpreted Exhibit-6 (the reply to notice), which does not imply any liability of the petitioner. They also improperly treated Exhibit-7 as an admission by the petitioner, despite it being written under pressure. The Courts failed to apply proper judicial reasoning, particularly when the petitioner examined himself and submitted documents a, b, and c. Despite this, the Courts wrongly concluded that the defence had not submitted any documents, thus undermining the entire judgment.

7. The Courts overlooked the respondent's statement that they were business associates in Silchar, which supports the petitioner's claim that he repaid the loan, as evidenced by the signed receipt from the complainant/respondent No.2. The conviction of the petitioner to repay Rs. 6,00,000/-(Rupees six lakhs) only for an alleged loan of Rs. 6,60,000/- (Rupees six lakhs sixty thousand) only despite the petitioner already having repaid Rs. 2.5 Lakhs (as admitted by the respondent No.2), is legally flawed and taints the entire judgment.

8. Mr. Rajbarhuiyan, learned counsel for the petitioner, further submitted that despite the positive report received from the handwriting expert, the learned Trial Court did not accept the said report, which was favorable to the petitioner. He submits that this oversight necessitates a remand for the expert's Page No.# 7/14

examination to ensure a fair decision. Additionally, he contended that the petitioner does not have a legally enforceable debt for the cheque amount claimed by respondent No. 2. He accordingly submits that this is a fit case for quashing the impugned judgment and order dated 18.11.2019, which affirms the judgment dated 20.11.2018, by exercising the power under Section 482 of the Cr.P.C. He further requests that the matter be remanded to the learned Trial Court for fresh disposal, with proper examination by the FSL expert.

9. On the other hand, Mr. Deka, learned counsel for respondent No. 2, submitted that the complainant has established his case beyond all reasonable doubt, proving that the cheque in question was issued by the petitioner, who also admitted the signature on the cheque. Therefore, the learned Trial Court committed no error in allowing the respondent's No. 2 claim for the cheque amount. He further submits that the petitioner's defence is contradictory: while he denied issuing the cheque and receiving any money from the respondent No.2, he also admitted liability and filed a petition, which was marked as Exhibit-7 and is part of the record. Additionally, the petitioner admitted to make the payments during the pendency of the case, which was also acknowledged by the respondent No.2 during cross-examination. This establishes a legally enforceable debt, which the petitioner accepts. Moreover, he pointed out that during the recording of the petitioner's statement under Section 313 of the Cr.P.C., the petitioner stated he would present his own evidence and that of other witnesses, including the handwriting expert. However, despite this commitment, the petitioner never presented any evidence, nor did he introduce the expert's report, which he had relied upon. Thus, the handwriting expert was not brought into the record, nor was the expert's evidence exhibited or cross- examined by the petitioner.

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10. Mr. Deka, learned counsel for respondent No. 2, further submitted that both the learned Trial Court and the learned Appellate Court rightly passed their orders, taking all aspects of the case into consideration, and thus, no interference by this Court is warranted. He also pointed out that the petitioner did not dispute the signature on the cheque and failed to produce any rebuttable evidence to challenge the presumption under Section 139 of the N.I. Act. The statutory presumption was not effectively rebutted by the petitioner, either through documentary or oral evidence, or by cross-examining the P.Ws. To support this submission, he cited the Hon'ble Supreme Court's decision in Rahul Sudhakar Anantwar vs. Shivkumar Kanhiyalal Shrivastav, reported in AIR Online 2019 SC 1326, particularly emphasizing paragraph No. 7 of the judgment, which reads as follows:

"(7) Admittedly, the parties had entered into an Agreement of Sale dated 28.02.2012. It is also an admitted fact that the respondent-complainant had paid Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand) as an advance/earnest money to the appellant- accused as per the terms of the Agreement. As pointed out by the High Court, the appellant-accused has not disputed his signature on the said cheque presented for clearance.

Contention of the appellant that the cheque issued in the name of the Firm, named, Synergy and Solution Incorporation was removed from his office table is not convincing nor the same is supported by any evidence. As pointed by the High Court in the statutory presumption under Section 139 of N.I. Act, the appellant-accused has not satisfactorily rebutted the statutory presumption. In view of the above, we do not find any ground warranting interference with the conviction of the appellant- accused under Section 138 of N.I. Act."

11. On the issue of the presumption under Section 139 of the N.I. Act, Mr. Deka, learned counsel for respondent No. 2, relied on the decision rendered by the the Hon'ble Supreme Court in Rajesh Jain vs. Ajay Singh, reported in (2023) 10 SCC 148.

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12. Regarding the submissions made by the learned counsel for the petitioner for remanding the case, Mr. Deka, learned counsel for respondent No. 2, submitted that the scope under a revision petition is very limited. Section 397 of the Cr.P.C. grants the power to call for the records of the inferior court to satisfy the legality, propriety, and correctness of the order passed by the learned Trial Court. The objective of the revision court is to address defects or jurisdictional errors of law, but beyond that, the scope is limited. Therefore, the prayer for remanding the case for the examination of the expert is not maintainable under the revision petition. In support of his submission, he relied on the decision of the Hon'ble Supreme Court in Amit Kapoor vs. Ramesh Chander and Anr. , reported in (2012) 9 SCC 460, specifically referring to paragraph Nos. 12 and 13 of the judgment, which read as follows:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge Page No.# 10/14

has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C."

13. In this context, Mr. Deka, learned counsel for respondent No. 2, also relied on the decision passed by the Co-Ordinate bench in Rani Saha vs. Dipak Kumar Saha, reported in 2006 (4) GLT 303, which held that Section 397 of the Cr. P.C. cannot entertain or adjudicate fresh controversies under the guise of a question of law. Raising fresh disputed facts and evidence in a criminal revision petition cannot be considered a question of law.

14. Mr. Deka, learned counsel for the respondent No.2 further submitted that, despite several opportunities given to the petitioner to adduce rebuttal evidence or present expert testimony, the petitioner remained absent. The petitioner himself admitted in Exhibit-7 that he would pay Rs. 6,60,000/- (Rupees six lakhs sixty thousand) to respondent No. 2 within one month and accepted full liability for the payment. However, it is an admitted fact that during the pendency of this case, the petitioner had already paid Rs. 2,50,000/- (Rupees two lakhs fifty thousand) to respondent No. 2, as reflected in both the learned Trial Court's and learned Appellate Court's orders. Accordingly, he submitted that there is no reason for any interference with the judgments and orders passed by the learned Trial Court and the learned Appellate Court, and accordingly, he prays for the dismissal of the revision petition.

15. After hearing the submissions of learned counsel for both parties, I have carefully perused the case records, evidence, and the judgments passed by both the learned Trial Court and the learned Appellate Court. The respondent's case is that the petitioner had a business relationship with respondent No. 2 and, in pursuant of that, agreed to pay a loan amount of Rs. 6,60,000/- (Rupees six Page No.# 11/14

lakhs sixty thousand) only to the petitioner. However, despite several requests, the petitioner failed to repay the amount. Consequently, after all necessary formalities and serving a legal notice, a case under Section 138 of the N.I. Act was filed, seeking the cheque amount of Rs. 6,60,000/-. On the other hand, the petitioner admits receiving the loan amount but claims that the entire loan of Rs. 6,60,000/- (Rupees six lakhs sixty thousand) only has already been repaid. In this regard, the petitioner produced Exhibit-C (a money receipt) and claimed that the signature on the receipt was confirmed by the FSL expert. However, the petitioner alleges that the learned Trial Court did not consider this expert report and failed to appreciate his rebuttal evidence against the presumption under Section 139 of the N.I. Act. Further, in the reply to the legal notice issued by the respondent No.2, the petitioner initially denied issuing any cheque or receiving any money from the respondent No.2. However, in a subsequent reply, the petitioner stated that he had repaid the entire loan amount of Rs. 6,60,000/- (Rupees six lakhs sixty thousand) only as evidenced by Exhibit-C on 15.09.2010, prior to the institution of the N.I. Case No. 78/2010. Additionally, the petitioner claimed to have paid Rs. 40,000/- on 04.11.2013 (Exhibit-A), Rs. 1,60,000/- on 28.08.2013 (Exhibit-B), and Rs. 50,000/- via demand draft on 08.10.2013 towards the cheque amount.

16. It is seen that the petitioner's stand is contradictory. On one hand, he denies issuing any cheque or receiving any money from the respondent No.2. On the other hand, he admits to repay the loan amount and, furthermore, claims to have made partial payments during the pendency of the case. The petitioner's contradictory pleas creates reasonable doubts, as there is no proper explanation as to why the petitioner would make payments if no money was ever borrowed or if no cheque was issued. Notably, during the proceedings, the Page No.# 12/14

petitioner filed an application agreeing to pay the entire loan amount of Rs. 6,60,000/- within one month, which further complicates his defence. Additionally, despite multiple opportunities to substantiate his claims, the petitioner failed to present evidence or brings in any witnesses, including the handwriting expert who allegedly provided a positive report regarding the signature on Exhibit-C. The handwriting expert's testimony was never brought into the record, and the petitioner did not cross-examine the expert or provide any rebuttal to the presumption under Section 139 of the N.I. Act. Moreover, when the petitioner was given an opportunity to adduce evidence during the recording of his statement under Section 313 of Cr. P.C., he did not produce any evidence to rebut the presumption. This reflects a lack of due diligence on his part to substantiate his defence. Although there are reasonable doubts regarding the consistency and veracity of the petitioner's case, one fact remains undisputed: the petitioner never denied his signature on the cheque and admitted his liability to repay Rs. 6,60,000/- (Rupees six lakhs sixty thousand) only to the respondent. Furthermore, it is an admitted fact that the petitioner made a partial payment of Rs. 2,50,000/- during the pendency of the case in three installments--two through money receipts and one through a demand draft.

17. From the above discussion, it is evident that the petitioner never disputed the signature on the cheque in question. Furthermore, the petitioner admitted and agreed to pay the entire cheque amount of Rs. 6,60,000/- (Rupees six lakhs sixty thousand) only by filing an application during the pendency of this case. However, at the same time, the petitioner claims that the entire amount of Rs. 6,60,000/- (Rupees six lakhs sixty thousand) only has already been paid to respondent No. 2, and therefore, he has no liability to pay any further amount.

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As discussed earlier, the petitioner failed to adduce any evidence or call an FSL expert or handwriting expert to present the testimony and bring the FSL report into the record. Thus, it is an admitted fact that the accused/petitioner issued the cheque in question, and he never disputed the signature on it. The cheque was returned dishonored due to insufficient funds, and as such, the presumption under Section 139 of the N.I Act applies. It is the burden of the accused/petitioner to rebut the presumption that he issued the cheque in question against a debt or liability. However, in the present case, despite the petitioner's plea that he has already repaid the entire amount, he did not provide any evidence to rebut the presumption under Section 139 of the N.I Act. Instead, he agreed to repay the entire cheque amount of Rs. 6,60,000/- (Rupees six lakhs sixty thousand) only and, during the pendency of this case, Rs. 2,50,000/- (Rupees two lakhs fifty thousand) only has already been repaid, which is also admitted by respondent No. 2. Further, the learned Trial Court, as well as the learned Appellate Court, rightly observed that the availability of the FSL expert's opinion in the case record by itself cannot be considered evidence unless it is proven according to the law, with corroborative evidence or through proper exhibition.

18. In view of the above, this Court is of the opinion that the impugned Judgment and Order dated 18.11.2019, passed by the learned Sessions Judge, Cachar, Silchar, in Crl. Appeal Case No. 40/2018, affirming the impugned Judgment and Order dated 20.11.2018 passed by the learned Chief Judicial Magistrate, Cachar, Silchar, in N.I. Case No. 78/2010, does not require any interference by this Court. Accordingly, the criminal revision petition is dismissed.

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19. With above observation, this criminal revision petition stands disposed of.

JUDGE

Comparing Assistant