Crl.Rev.P./165/2018
2025 Latest Caselaw 4417 Gua

Gauhati High Court

Crl.Rev.P./165/2018 on 25 March, 2025

GAHC010105532018




                                               2025:GAU-AS:3338


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


                      CRL.REV.PET.NO. 165 OF 2018

                      Mr. Kanak Chandra Bordoloi,
                      Son of Late Bhogi Ram Bordoloi,
                      Resident of Vartak Vihar, Kamarchuburi, P.O.
                      Tezpur, District Sonitpur, Assam,
                      PIN: 784001.
                                                   ........Petitioner
                                -Versus-

                      1. The State of Assam,
                      Represented by P.P, Assam.

                      2. Smti. Inu Hazarika,
                      W/o Late Sashanka Kumar Das,
                      R/o Usha Nagar, Ward No. 16,
                      Tezpur Town, Bye lane No. 21,
                      P.O. And P.S. Tezpur, Dist.-Tezpur, Assam,
                      PIN- 784001.
                                                 ........Respondents

                          -BEFORE-

          HON'BLE MR. JUSTICE KAUSHIK GOSWAMI

For the Petitioner    :   Mr. S. Nawaz
                      :   Mr. A. Sarma
                      :   Mr. B. Choudhury
                      :   Mr. K. Kalita
                      :   Mr. S. Chowdhury
For the Respondents   :   Mr. M.K. Das for respondent No. 2
                                                          Page 1 of 17
                         :   Mr. D. Saikia
                        :   Mr. B. Phukan
                        :   Mr. B. Deka
                        :   Mr. P.M. Kalita
                        :   Ms. B. Chetry
                        :   Mr. S.J. Dutta
                        :   Ms. S.H. Borah, learned Addl. P.P

Date of Hearing & Judgment    : 25.03.2025



                JUDGMENT & ORDER (ORAL)

Heard Mr. S. Nawaz, learned counsel for the petitioner. Also heard Mr. M.K. Das, learned counsel for the respondent No. 2 and Ms. S.H. Borah, learned Addl. Public Prosecutor for the State respondent.

2. By way of this petition under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.PC'), the petitioner is assailing the Judgment & Order dated 14.03.2018 passed by the learned Additional Sessions Judge, Sonitpur, Tezpur (hereinafter referred to as the 'Appellate Court') in Criminal Appeal No. 14(S-3) of 2016, whereby the appeal filed by the petitioner was dismissed by up-holding the Judgment & Order dated 15.09.2013 passed by the learned Additional Chief Judicial Magistrate, Sonitpur, Tezpur (hereinafter referred to as the 'Magistrate Court') in N.I Case No. 39/2013 registered under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as the 'N.I. Act').

3. The brief facts of the case is that a complaint petition was filed by the respondent No. 2 on 06.01.2014 alleging inter alia

that the petitioner, upon seeking financial help from him by way of loan, he in good faith lend him a loan of Rs. 3,20,000/- (Rupees Three Lakhs Twenty Thousand) only upon the promise of the petitioner that the same will be repaid after 2 (two) months.

4. It is the further alleged case that after 2 (two) months, the respondent No. 2 had asked for his money and accordingly, the petitioner issued a cheque bearing No. 009825 dated 12.09.2012 of Assam Gramin Vikash Bank, Tezpur for Rs. 3,20,000/- (Rupees Three Lakhs Twenty Thousand) only in favour of the respondent No. 2 in discharge of the aforesaid loan. However, upon presentation of the said cheque, the cheque was returned back due to 'insufficiency of funds'.

5. It is further alleged that thereafter, upon the request of the petitioner not to send legal notice and that to present the cheque in the month of December when he will have sufficient balance in his account, the respondent No. 2 represented the cheque in the Bank for payment on 10.12.2012. However, it is again dishonoured showing 'insufficiency of funds'. Accordingly, it is alleged that legal notice was sent on 09.01.2013, demanding the petitioner to make the payment of the cheque amount, however, despite receipt of the notice, the said payment was not made. Accordingly, the complaint petition was filed, wherein the Magistrate Court took cognizance of the offence under Section 138 of the N.I. Act and after conclusion of trial, was pleased to find the petitioner guilty under Section 138 of the N.I. Act and accordingly convicted him and sentenced him to pay a fine of Rs.

3,80,000/- (Rupees Three Lakhs Eighty Thousand) only, in default, Simple Imprisonment for 5 (five) months.

6. Being dissatisfied with the Judgment of the Magistrate Court, the petitioner filed an appeal before the Appellate Court, wherein the Appellate Court by Judgment & Order dated 15.09.2016 was pleased to dismiss the appeal by up-holding the conviction given by the Magistrate Court. Hence, the present Criminal Revision Petition has been filed.

7. Mr. S. Nawaz, learned counsel for the petitioner submits that the petitioner, having discharged the onus under Section 118 of the N.I. Act has proved the defence by meeting the standards of preponderance of probabilities and hence, the Judgment & Order of both the Appellate Court as well as the Magistrate Court are totally erroneous in law.

8. He further submits that there being no legally enforceable debt due to the respondent No. 2, no offence under Section 138 of the N.I. Act is established and hence, the Judgment & Order of both the Magistrate Court as well as the Appellate Court warrants interference from this Court.

9. He further submits that the petitioner having questioned the financial capacity of the respondent No. 2, there could have been no legally enforceable debt. He further submits that part payment of the loan amount having been paid to the son of the respondent No. 2, which is clearly established by the evidence of DW-1, no offence under Section 138 of the N.I. Act is established. He

further submits that the petitioner has successfully rebutted the presumption under Section 118 of the N.I. Act.

10. In support of the aforesaid submission, he relies upon the following decisions of the Apex Court in the case of:-

(i) Manju Ram Kalita Vs. State of Assam, reported in (2009) 13 SCC 330.

(ii) John K. Abraham Vs. Simon C. Abraham and Another, reported in (2014) 2 SCC 236.

(iii) Basalingappa Vs. Mudibasappa, reported in (2019) 5 SCC 418.

11. Per contra, Mr. M.K. Das, learned counsel for the respondent No. 2 by vehemently opposing has submitted that both the Appellate Court as well as the Magistrate Court having not committed any error apparent on the face of the record, the Criminal Revision Petition is liable to be dismissed.

12. He further submits that upon the presumption being drawn under Section 118 of the N.I. Act against the petitioner, the onus was on the petitioner to rebut the said presumption by adducing material evidence.

13. He further submits that apparent on the face of the record that no material evidence whatsoever has been adduced by the petitioner to rebut the said presumption, whereas on the contrary, the petitioner by admitting the signature on the cheque and the money taken by him from the respondent No. 2 has acknowledged the debt which is enforceable in law.

14. He accordingly submits that the Judgment & Order of both the Magistrate Court as well as the Appellate Court being based on evidence, sufficiency of the same cannot be looked into by this Court while exercising the powers of revision.

15. I have given my prudent consideration to the arguments advanced by the learned counsels for the contending parties and have perused the materials available on record.

16. The prosecution has examined 3 (three) witnesses including the respondent No. 2 himself and exhibited documents in support of his case, whereas the petitioner has been examined under Section 313 Cr.PC, wherein he stated that he has committed no offence and adduced 1 (one) witness being DW-1 in support of his defence.

17. It appears from the evidence of CW-1/respondent No. 2 that he has clearly deposed in support of the statements made in the complaint. It appears that the aforesaid testimony of CW-1 could not be shaken by the petitioner during cross-examination. It further appears that the testimony of PW-1 has been corroborated by other Prosecution Witnesses.

18. It further appears that the petitioner attempted to rebut the presumption on two grounds, firstly, that the petitioner had borrowed Rs. 1,60,000/- (Rupees One Lakhs Sixty Thousand) only from the respondent No. 2 and had given a blank cheque to the respondent No. 2 as security measures and secondly, a sum of Rs. 1,07,000/- (Rupees One Lakhs Seven Thousand) only has been paid to the son of the respondent No. 2 by means of a

cheque drawn on Bank of Baroda against part payment of the said loan.

19. It further appears that in order to prove the aforesaid defence, the petitioner has examined one DW, Sri Ranjit Kumar Das, who is the Sr. Branch Manager, Bank of Baroda, Tezpur Branch, who deposed to the fact that the petitioner had issued a cheque bearing No. 531195 dated 13.03.2012 amounting to Rs. 1,07,000/- (Rupees One Lakhs Seven Thousand) only to the son of the respondent No. 2 through his Account No. 101/5841. It appears that he has exhibited the statement of account showing the aforesaid payment to the son of the respondent No. 2 as Ext. B.

20. It appears that there is no evidence led by the accused to establish that the sum of Rs. 1,07,000/- (Rupees One Lakhs Seven Thousand) only paid to the account of the son of the respondent No. 2 was against the money given by the respondent No. 2 to the petitioner. That apart, there is also no evidence available in the materials submitted by the respondent No. 2 to indicate or suggest that the said amount paid to the account of the son of the respondent No. 2 was against the subject loan. The standard of prove of such evidence is not required to be beyond reasonable doubt. However, it is sufficient if it meets the standard of preponderance of probability. In order to meet the preponderance of probability, there has to be some evidence either adduced by the accused or in the materials submitted by the complainant.

21. Reference in this regard is made to the decision of the Apex Court in the case of Basalingappa (supra), wherein the Apex Court has held as hereunder:-

"25. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-

25.1 Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

25.2 The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

25.3 To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

25.4 That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.

25.5 It is not necessary for the accused to come in the witness box to support his defence."

22. Reading of the aforesaid decision, it appears that to rebut the presumption as provided under Section 118 read with Section 139 of the N.I. Act, it is open for the accused to rely on evidence led by him or on the materials submitted by the complainant in order to raise a probable defence. Thus, inference of

preponderance of probability can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. Therefore, there has to be some evidence on the basis of which the defence of the accused can be probabalised. In the absence of such evidence, it cannot be said that the accused has been able to rebut the presumption by meeting the standards of preponderance of probability. In the instant case, it is evident that there is no materials on record to probabalise the defence raised by the accused and hence, it cannot be said that the accused has proved his defence by meeting the standard of preponderance of probability.

23. Now turning to the decision of the Apex Court in the case of John K. Abraham (supra), relied upon by the learned counsel for the petitioner, it appears that the Apex Court upon finding that the materials particulars to constitute an offence under Section 138 of the N.I. Act being lacking, has held that no offence under Section 138 of the N.I. Act is made out against the accused. However, in the present case, there being no lack of material particulars in the case of the prosecution, the aforesaid decision is not applicable to the facts of the present case.

24. The arguments of the learned counsel for the petitioner to the effect that when the accused petitioner questions the financial capacity of the complainant, it is incumbent on the complainant to have explained his financial capacity and Court cannot insist on a person to lead negative evidence is concerned, there is no quarrel to the aforesaid proposition. However, in order to apply the said

proposition, in the facts of the present case, it has to be first shown by evidence either by adducing himself or from the prosecution evidence that the complainant is financially incapable of giving the loan in question. In the present case, it appears that the petitioner has merely suggested during cross-examination of the respondent No. 2 as regards his financial incapabilities which was denied by the respondent No. 2. That being so, I am afraid that the aforesaid argument of the learned counsel for the petitioner cannot be accepted. Mere suggestion as regards financial incapabilities during cross examination will not be sufficient to probabalise the said defence unless there is something more to it.

25. By relying the decision of the Apex Court in the case of Manju Ram Kalita (supra), the learned counsel for the petitioner argued that in a given situation where the Court below has not considered the material facts and did not take into consideration any admissible evidence, the Revisional Court is entitled to quash the Judgment of the Appellate Court, I am afraid that the aforesaid argument also cannot be accepted in the facts of the present case, inasmuch as, it is apparent from the Judgment & Order of the Magistrate Court as well as the Appellate Court that both the Judgment & Order are based on evidence after the same being duly considered.

26. The Revisional jurisdiction is not a Court of appeal. It is only when the Trial Court has not kept in view the correct position of law and has failed to appreciate the evidence in its true perspective, it would be within the jurisdiction of the Revisional

Court to apprise the evidence and come to a conclusion as to whether the conclusion of the Trial Court was justified or not. Therefore, when the conclusion of the Trial Court is manifestly and palpably erroneous apparent on the face of the record, the Revisional Court would be fully justified to go into the facts and correct the errors. In other words, it is not on the ground of inadequacy of evidence that the Revisional Court interferes but on the ground that there has been a clear case of miscarriage of justice.

27. Keeping in mind the above position of law, let me now examine the Judgment & Order of both the Magistrate Court as well as the Appellate Court. Apt to refer to paragraph Nos. 15 to 26 of the Judgment & Order of the Magistrate Court, which reads as hereunder:-

"15. On a careful examination of the testimony of CW1, I find that he has stood firmly on his evidence. Nothing could be brought in his cross examination, to disbelieve him. In the cross examination of CW1, it was not suggested that the Ext 1 cheque was not issued by the accused. It was suggested to him that the accused had borrowed only Rs.160000/- instead of Rs.320000/- and the accused had delivered to him a cheque for security purpose and that cheque was misused by him. But, CW1 has denied the suggestion. He also stated that he has not filled up the Ext1, cheque. He denied the suggestion that the written part of the cheque was written by his son. The accused, in his examination u/s 313 Cr PC, has stated that he had given the complainant, a blank cheque as security, at the time of borrowing of money of Rs.160000/-. The accused has also stated that the Ext1 cheque might be issued by him, as because, he had given a blank cheque to the complainant as security.

16. Thus, from the above, it is clear that the defense side has not denied that Ext 1 cheque was issued by him and Ext 1(1) is his signature. However, the defense side has denied that the cheque amount was Rs.320000/-.The plea taken by the accused is that the cheque was a blank cheque and was meant for security.

17. Moreover, the evidence of CW2(PW2), Sri Abhinash Brahma, the Chief Manager, Assam Gramin Vikas Bank, Tezpur Branch, has substantially corroborated the evidence of CW1. He has categorically stated, in his testimony that Sri Kanak Ch. Bordoloi was issued with cheques nos. 9801 to 9825 and this fact has been stated by him from the cheque issue register. Ext 10(now Ext 9, after correction) is the cheque issue register. He stated that Ext 1 is one of the cheques of the cheque book, issued in the name of the accused, and Ext 1(1) is the signature of the account holder, Sri Kanak Ch. Bordoloi.

18. Thus, once it is proved that the Ext1, Cheque was drawn by the accused, with his signature on it as Ext 1(1), the factual basis for giving rise to the presumption u/s 118 and 139 of NI Act, can be said to be present. Hence, the presumption of Sec118 and 139 of NI Act, mandates the Court to presume that the cheque was for consideration and it was issued by the accused, in favour of the complainant for discharge of any debt or liability.

19. Hence, the burden is on the defense side to rebut the presumption u/s 139 of NI Act.

20. The defense side has tried to rebut the presumption on two grounds. One ground is that the accused had borrowed Rs.160000/- from the complainant, and had given a blank cheque to the complainant as security measure. However, the plea that the accused had borrowed only Rs.160000/- from the complainant has not been supported by any evidence. Nothing has been elicited in the cross examination of PWs, to raise a reasonable doubt regarding this. This plea was raised only by way of suggestion, which was denied by the complainant.

21. The accused, in his examination u/s 313 Cr PC, has asserted that the cheque(Ext1) was given to the complainant as a blank cheque, as security for the amount borrowed. However, this plea was taken only by way of suggestion to the complainant which he had denied. Mere suggestion does not prove that the cheque was not issued in discharge of any legally enforceable debt or liability, nor does it enables the accused to rebut the presumption on the basis of preponderance of probability.

22. The other ground, which the defense side has taken is that a part of the borrowed money of Rs.160000/-, a sum of Rs.107000/- has already been paid to the son of the complainant, by means of a cheque drawn on Bank of Baroda, by the accused. Hence, there is no debt or liability as claimed by the complainant,

23. In order to substantiate the above ground, the defense side has examined one DW, Sri Ranjit Kumar Das, who is the Sr. Branch Manager, Bank of Baroda Tezpur branch. The said DW, has stated in his examination in chief that Sri Kanak Bordoloi ( accused) had issued a cheque, bearing no. 531195, dtd. 13.3.12, of Rs.107000/- to Sri Kaushik Kashyap, through his account no. 01/5841. The said money was paid to Kaushik Kashyap, through transaction no. 00565728. Ext A is the said cheque, proved in original, and on the back side of the cheque, two signatures of Kaushik Kashyap are written. In the statement of account as on 31.3.12, the fact of payment of Rs.107000/- to Kaushik Kashyap has been mentioned. Ext B is the statement of account, as electronically maintained and Ext B(1) is the certificate written by his own hand.

24. The evidence of DW-1, does establish the fact that the accused had given Rs.107000/- to Sri Kaushik Kashyap, who happens to be the son of the complainant. I find nothing to doubt the assertion of DW-1. However, nowhere in his evidence, it is mentioned that Rs.107000/- was given to Kaushik Kashyap, in part payment of the original debt, which the accused had owed to the complainant. In other

words, there is no evidence to establish that link, or at least, to create reasonable doubt that the money was given in part payment. In fact, DW-1 has, himself, stated that there is no link between Ext 1 cheque and Ext A cheque. He has also stated that it is not mentioned in Ext A that there was connection with Sasanka Kr. Das.

25. Moreover, the transaction was between the accused and the complainant. There is no reasonable explanation as to why accused had chosen to pay the amount of Rs.107000/- to the son of the complainant, instead to the complainant, although he had borrowed from the complainant. The son of the complainant was not privy to the transaction between the accused and the complainant. Hence, in the absence of any evidence in this regard, I find that the transaction between the accused and the complainant and between the accused and the son of the complainant, are distinct and independent of each other.

26. As both the above grounds are found not reliable and are insufficient to rebut the presumptions u/s 118 and 139 of NI Act, which lean in favour of the complainant."

28. Apt also to refer to the relevant paragraphs of the Judgment & Order of the Appellate Court, which reads as hereunder:-

"16. Appreciating the materials on record it is found that the complainant has able to prove the cheque in question amounting to Rs.3,20,000.00 (Rupees three lakhs twenty thousand) issued by the accused/appellant. Although a question was put to PW1 Sasanka Kumar Das that the accused/appellant had paid Rs.1,07,000.00 (Rupees one lakh seven thousand) only out of the cheque amount to the son of the PW1 but the same has been denied by the PW1. DW1 Kanak Bordoloi, although, has proved payment of Rs.1,07,000.00 (Rupees one lakh seven thousand) only through cheque, the Ext.D and the statement of account of accused/appellant in the form of Ext.B but the same is not sufficient to prove the contention of the

accused/appellant that he has paid the same to Kausik Kashyap, the son of the PW1 against the cheque, the Ext.1.

17. In view of the above evidence on record, contention of the accused/appellant to the effect that he has paid a part of the cheque amount to the son of the complainant is not believable to this court. PW2 Abinash Brahma, bank official, has proved the signature of the accused/appellant on the cheque, the Ext.1 and has also proved the statement of account of the accused/appellant as Ext.12.

18. From the available evidence on record, as already discussed above in this judgment, I have come to the conclusion that the accused/appellant had issued the cheque amounting to Rs.3,20,000.00 (Rupees three lakh twenty thousand) in favour of complainant Sasanka Kumar Das and on being presented, the same was returned dishonoured due to insufficient fund and in spite of issuance of notice the accused/appellant has failed to pay the same.

19. Ld. Counsel for the accused/appellant has submitted on another aspect that the case was filed on the basis of certificate issued by the Postal Department in the form of Ext.9 but PW3 Monoj Nath could not able to say from Ext.A, Ext.B and Ext.9 as to who had delivered the letter. On the basis of documentary evidence of Ext.A, Ext.B and Ext.9 and oral evidence of PW3 Monoj Nath, Id. Counsel for the appellant has argued that the notice was not properly served upon the accused/appellant and as such filing of the complaint is immature and hence not tenable in law.

20. Record reveals that the accused/appellant had appeared before the Ld. Trial Court on 25-4-13 and he has not challenged the order of taking cognizance in appropriate forum and has also not resorted to settle the dispute, if as per him he had partially paid the said amount, and as such at this stage I am of the opinion that the accused/appellant is not entitled to get any benefit out of the procedure of service of notice.

21. As per Section 102 of the Indian Evidence Act, burden of prove in a suit or proceeding lies on that person who would fall if no evidence at all were given on either side. Similarly, as per Section 103 of the Indian Evidence Act, the burden of proving is to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. In the instant case the complainant has not admitted the receipt of Rs.1,07,000.00 (Rupees one lakh seven thousand) only from the accused/appellant through the son of the complainant and as such burden lies upon the accused/appellant to prove the fact that he has paid the amount to the son of the complainant who had received the same on behalf of the complainant against the cheque amount, the Ext.1, to which, from the evidence on record the accused/appellant failed to substantiate or prove.

22. Upon consideration of the available oral and documentary evidence on record and after going through the reasoning and findings of the Ld. Trial Court as well as the decision referred to above, I am of the opinion that Ld. Trial Court has rightly decided the issue and rightly convicted the accused/appellant for the offence U/s.138 of the N.I. Act."

29. Reading of the aforesaid Judgment & Order of the Appellate Court as well as the Magistrate Court, I am of the unhesitant view that there is no manifest error apparent in the aforesaid Judgment & Order. Hence, the Criminal Revision Petition fails.

30. Accordingly, the Criminal Revision Petition stands dismissed.

31. Send back the case records.

JUDGE

Comparing Assistant