Page No.# 1/6 vs Chandra Handique on 6 January, 2026

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                           Page No.# 1/6

GAHC010150402022




                                                                  2026:GAU-AS:126

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

                              Case No. : Crl.Rev.P./393/2022

            M/S RAJIB STEEL FABRICATION BHADHARA KRISHI PAM NIGAM AND
            ANR.
            P.O. BHADHARA P.S. SIVASAGAR
            DIST. SIVASAGAR, ASSAM,
            PIN-785640

            2: SRI RAJIB GOGOI
             S/O SRI GOBIN GOGOI
            PROPRIETOR OF M/S RAJIB STEEL FABRICATION
            BHADHARA KRISHI PAM NIGAM
            P.O. BHADHARA
             P.S. SIVASAGAR

            DIST. SIVASAGAR
            ASSAM
            PIN-78564

            VERSUS

            CHANDRA HANDIQUE
            S/O LATE MALBHOG HANDIQUE
            R/O A.T. ROAD, SIVASAGAR TOWN, WARD NO. 6, P.O. SIVASAGAR, P.S.
            SIVASAGAR, DIST. SIVASAGAR, ASSAM, PIN-785640



Advocate for the Petitioner   : MR. A R SHOME, MR S CHAUHAN,MR A J GHOSH

Advocate for the Respondent : MR A W AMAN, MR S T ADNAN,MS SURAYA RAHMAN,MR

SARFRAZ NAWAZ Page No.# 2/6

:: BEFORE ::

(HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA)

Advocate(s) for the Petitioners : Mr. A.R. Shome, Advocate.

Advocate(s) for the Respondent        :         Mr. S. Nawaz,
                                               Advocate.


Date on which judgment is reserved :            26.08.2025.
Date of pronouncement of judgment :             06.01.2026.
Whether the pronouncement is of the
operative part of the judgment?        :        YES.
Whether the full judgment has been
pronounced?                                :     YES.



                          JUDGMENT AND ORDER (CAV)

Heard Mr. A.R. Shome, the learned counsel appearing for the petitioners. Also heard Mr. S. Nawaz, the learned counsel representing the sole respondent.

2. This is an application under Section 397 read with Section 401 of the Criminal Procedure Code challenging the judgment and order dated 30.05.2022 passed by the learned Addl. Sessions Judge, Sivasagar in Criminal Appeal No.47(4)/2019 affirming the judgment dated 05.11.2019 passed by the learned Addl. Chief Judicial Magistrate, Sivasagar in C.R.(N.I.) Case No.27/2018.

3. In fact, the petitioners were convicted under Section 138 of the N.I. Act.

4. The petitioner No.2 Rajib Gogoi being the proprietor of M/S. Rajiv Steel Fabrication, borrowed a sum of ₹3,50,000/- from the respondent. On 27.02.2017, the Page No.# 3/6

money was paid accordingly.

5. Thereafter, on 15.02.2018, the present petitioner no.2 had issued a cheque bearing No.000759 for an amount of ₹3,50,000/- to the respondent. The cheque was presented to the Bank and on 17.03.2018, it was dishonoured on the ground "exceeds arrangement". Therefore, the respondent issued a notice to the petitioner no.2 demanding the money. On 10.04.2018, a notice was issued to the petitioner no.2 and the same was accepted by him on 12.04.2018. The money was not paid. Therefore, a complaint case was filed.

6. During the trial, the respondent and the petitioner no.2 examined one witness each.

7. The petitioner no.2 took a plea that he had actually borrowed a sum of ₹1,50,000/- from the respondent and in lieu of that, he had agreed a plot of land to the respondent. According to the petitioner no.2, the said deed did not materialise and he had returned an amount of ₹50,000/- in cash to the respondent and for the remaining amount of ₹100,000/-, the petitioner no.2 gave a blank cheque to the respondent as security.

8. The respondent examined himself as the complainant. But the petitioner no.2 did not examine himself, rather he examined his cousin called Lila Bora. The witness Lila Bora has stated that the petitioner no.2 has sold two bighas of land to the respondent. But the father of the petitioner no.2 came into the scene and demanded that the petitioner no.2 should return the land and take back the money paid by him to the respondent. In this way, the witness has stated, the petitioner no.2 paid an amount of ₹50,000/- in cash to the respondent and promised to return the remaining ₹1000,00/- in instalments. According to the witness Lila Bora, the respondent did not agree to the said proposal and demanded that he should issued a cheque of ₹1000,00/- and accordingly the petitioner no.2 issued the cheque to the respondent.

9. On the basis of the evidence on record, the trial court convicted the petitioner Page No.# 4/6

no.2.

10. He filed an appeal before the court of Sessions being Criminal Appeal No.47(4) of 2019.

11. The appellate court on the basis of Bidyadhar v. Manikrao, reported in AIR 1999 SC 1441 held that the petitioner no.2 failed to appear in the witness box and did not state his own case on oath and also did not offer himself to be cross-examined by the other side meant that the case set up by him is not correct and the said fact will give rise to an inference adverse against him under Section 114 of the Indian Evidence Act.

12. Primarily, for the aforesaid reason, the appeal was dismissed.

13. I have gone through the trial court judgment as well as the appellate court judgment.

14. Mr. Nawaz, the learned counsel for the respondent has pointed out that the N.I. Act does not per se curve out any exception in respect of a "security cheque". In order to buttress his point, Mr. Nawaz has relied upon a judgment of the Hon'ble Supreme Court that was delivered in ICDS Ltd. v. Beena Shabeer, (2002) 6 SCC 426 . Paragraph 10 of the said judgment is quoted as under:

"10. The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words "Where any cheque". The abovenoted three words are of extreme significance, in particular, by reason of the user of the word "any" -- the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well . This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment."

15. Mr. Nawaz has submitted that even if the dishonoured cheque in question was issued as a "security cheque", it would still come under the ambit of Section 134 of the Page No.# 5/6

N.I. Act. According to Mr. Nawaz , the only condition is that at the time of issuance, the cheque must be backed by some form of legally enforceable debt or liability towards the holder.

16. I have considered the submissions made by the learned counsel of both sides.

17. In respect of the power under Section 397 of the Code of Criminal Procedure, in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, the Hon'ble the Supreme Court has held as under:

"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 scrutinise 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 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 CrPC.

20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression "prevent abuse of process of any court or otherwise to secure the ends of justice", the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The Page No.# 6/6

jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused."

18. The object of a revisional court 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 scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law.

19. This Court is of the opinion that the petitioner no.2 by failing to appear in the witness box and to offer him for cross-examination by the respondent proved that the plea taken by him was false. The learned trial court has correctly appreciated the evidence adduced by the parties and arrived at a correct finding. The trial court as well as the appellate court did not commit any error of law. Therefore, this revision petition is found to be devoid of merit.

20. For the aforesaid reasons, the revision petition is dismissed and disposed accordingly. The petitioner no.2 is directed to surrender before the trial court for serving the sentence. After receiving the case record, the trial court shall do the needful.

Send back the trial court record.

JUDGE

Comparing Assistant