B.D. Agarwal, J.

1. In this case the moot question to be decided is as to whether a person indemnifying the holder of a cheque can be said to have legally enforceable debt or other liability towards the holder of the cheque when the payer defaults in payment of the cheque amount u/s. 138 of the Negotiable Instruments Act, 1881. The appeal and revision petition are directed against the judgment dated 09.11.2011, passed by the learned Sessions Judge in Criminal Appeal Nos. 9 of 2010, affirming the judgment of the learned Judicial Magistrate, passed in CR Case No. 270 of 2008 dated 05.01.2010, whereby the accused has been convicted u/s. 138 of the NI Act.

2. I have heard Sri A.K. Bhuyan, learned counsel for the appellant and the respondent/accused was represented by Sri AB Choudhury, learned senior counsel, who was ably assisted by Sri M.J. Baruah, learned counsel. Also heard Sri K Munir, Additional Public Prosecutor for the State of Assam. I have also gone through the impugned judgments and the oral and documentary evidence, proffered by both the parties.

3. The complaint u/s. 138 r/w S. 142 of the NI Act was filed by the appellant in Criminal Appeal No. 10 of 2012 pleading that the complainant was a partner of a firm, named and styled as M/S Ayaan Consortium. The said firm had entered into a development agreement with the accused No. 2, Nazimul Islam. The agreement was executed on 6.7.2007 and as per the terms and conditions of the agreement the complainant paid a sum of Rs.10 lakhs as advance to the accused Nazimul Islam against construction of a multi-storied building over a certain plot of land. However, the agreement could not materialize and it was cancelled by way of execution of a 'Promissory Note' on 13.8.2007. As per the terms of the Promissory Note the accused Nazimul Islam promised to refund the advance amount of Rs.10 lakhs to the complainant within a month and for a limited period of one month the said accused deposited as many as five cheques with the complainant as security. The accused Nazimul Islam further agreed to pay interest for one month for the delay in refunding the money. Though the accused Nazimul Islam promised to refund the loan amount within one month the post-dated cheques were issued on the date of execution of Promissory Note dated 13.8.2007. The cheques were dated 5.9.2007, 7.9.2007, 9.9.2007 and 11.9.2007 and those were deposited by the complainant in his bank even before the due date i.e. expiry of one month period of the Promissory Note. Cheques were presented in the bank twice. The fact of dishonour of the cheques in the first round came to be known to the complainant on 15.9.2007. On this date the accused No. 1/respondent Haren Mudoi came into picture. The respondent indemnified the complainant and ratified that earlier cheques, handed over to Nazimul Islam, were actually issued by him, by way of making an endorsement in the original Promissory Note. On the basis of this endorsement the complainant again deposited the cheques in his bank on 5.11.2007, only to be dishonoured by the bank. It was followed by a statutory Notice on 27.11.2007. The notice was replied by accused No. 1/respondent on 7.12.2007 through his lawyer, under Exhibit-21, denying that he had any knowledge of handing over of the cheques to the complainant by Nazimul Islam and also about the dishonour of the cheques due to insufficient fund prior to 25.9.2007 (sic 15.9.2007). Though the respondent also pleaded that he had no business relation with the complainant he took the responsibility to pay the whole amount of Rs.10 lakhs tentatively in the second week of January, 2008 by issuing fresh cheques. On the basis of the respondent's endorsement in the Promissory Note and his certain admissions in the reply to the notice of the complaint the respondent in Criminal Appeal No. 10 of 2012 has been convicted u/s. 138 of the NI Act.

3.1 Since there are counter appeal and revision petition I would refer the parties as complainan