The court upheld the presumption under Section 139 of the NI Act, and the accused's conduct estopped him from denying the complainant's ownership of the vehicle and legal entitlement to the remaining amount.

JUDGMENT :

Rumi Kumari Phukan, J.

1. Present revision is preferred against the judgment and order dated 18.04.2015, passed by the learned Session Judge, Jorhat, in Criminal Appeal No. 39/2012, whereby, the Appellate Court has affirmed the judgment and order of the learned Sub Divisional Judicial Magistrate, Jorhat, in CR Case No. 383/2008, whereby the present accused person was convicted under Section 138 of NI Act and sentenced the accused person to undergo simple imprisonment for one month and also to pay compensation of Rs. 2 lakhs to the complainant under Section 357(3) of the Cr.P.C.

2. I have heard Mr. M.U. Mahmud, learned counsel for the petitioner and Mr. S.K. Agarwal, learned counsel appearing on behalf of private respondent.

3. Necessary factual matrix that emerges from the record is that the petitioner purchased the vehicle bearing registration No. AS-25/C-2385 (bus) from the respondent/complainant amount for consideration of Rs. 3,35,000/- and entered into an agreement to that affect on 18.03.2007. The accused petitioner paid the complainant a sum of Rs. 1,30,000/- in cash and Rs. 20,000/- by cheque and also issued a post dated cheque (29.10.2007) of Rs. 1,85,000/- for the remaining amount. As per the agreement, the complainant delivered the vehicle to the accuse person and the accused assured to pay the balance amount given in the cheque after few months and he asked the complainant not to deposit the cheque immediately. The complainant also directed by the accused person did not deposit the cheque immediately and only presented the cheque for clearance on 10.04.2008 to the banker of the accused person. The cheque was dishonoured which was intimated to the complainant on 06.05.2008. Having no alternative, the complainant after serving the legal notice upon the respondents filed the complaint case before the court under Section 138 of NI Act.

4. The accused petitioner contested the case and denied the charge under Section 138 of NI Act.

5. In support of the case, the complainant examined five witnesses and defence also examined three witnesses. The learned trial court at the conclusion of the trial held the accused person guilty under Section 138 of NI Act and sentenced him as aforesaid. The appeal so preferred was also dismissed by the appellate court while upholding the findings of the trial court. Challenging the validity and legality of the aforesaid order, the present revision has been preferred against such concurrent findings.

6. I have heard the submission of the learned counsel for both the parties and also gone through the impugned judgment and order of both the forums. It is to be noted that the learned trial court as well as appellate court has discussed and appreciated each and every aspect of the matter including the oral and documentary evidences.

7. The complainant has supported his complaint petition in his evidence and has stated that after entering into an agreement with the complainant that he is proposing to purchase the bus from the complainant for a consideration of Rs. 3,35,000/- he paid an amount of Rs. 1,30,000/- by cash and one another amount of Rs. 20,000/- by cheque and for the remaining amount of Rs. 1,80,000/- the accused issued post dated cheque. The complainant has produced and proved all the relevant documents pertaining to such transaction, like the agreement, the cheque in question, cheque return memo and the legal notice that was issued to the accused person prior to filing of the case.

8. The other witness, Dr. Ajit Kumar Bora/PW-2 and Pallab Deka/PW-4 supporting the contention of the complainant has submitted that PW-2 written the agreement between the parties regarding sale of said vehicle for an amount of Rs. 3,35,000/- and the transaction between the parties also made in presence of both of them i.e. PW-2 and PW-4 like cash payment and delivery of post dated cheque amounting to Rs. 1,85,000/- for the remaining balance amount.

9. The bank officials i.e. the Manager of Assam Gramin Bik