JUDGMENT :

Rumi Kumari Phukan, J.

Heard Mr. AM Bora, learned senior counsel appearing for and on behalf of the appellant and Mr. AK Purkayastha, learned counsel for and on behalf of respondent No.2.

2. Present revision under Section 397/401 of Code of Criminal Procedure has been preferred against the impugned judgment and order dated 20.10.2016 passed by the learned Additional Sub-Divisional Judicial Magistrate (S) No.II, Kamrup (M), Guwahati in Complaint Case No. 393C /2015 whereby the learned court has convicted the accused to undergo simple imprisonment for 12 months and directed for payment of Rs. 40,00,000/-, as compensation and in default, simple imprisonment for another four months.

3. The necessary facts of the case is that respondent filed the complaint petition stating that on 08.03.2006 both the accused person and the complainant entered into an agreement on condition that two numbers of residential flats of Ankit Complex, Ulubari, Guwahati, will be provided by the accused to the complainant, who took an advance amount of Rs.8,00,000/- from the complainant for the said purpose. It was further agreed that the accused would return the whole amount with prevailing interest rate thereof, if the complainant desires to withdraw the said amount. Subsequently, the accused person failed to provide any flat to the complainant in terms of the memorandum of agreement. Accordingly, on demand of money by the complainant for returning the amount taken by the accused person, they mutually entered into an agreement on 22.07.2010 afresh whereby the accused person agreed to return the principal amount along with the interest as total sum of amount of Rs.19,00,000/- to the complainant. The accused person, thereafter, returned an amount of Rs.1,00,000/- only on 22.07.2010 and agreed to return the remaining amount of Rs.18,00,000/- in two installments within three months with effect from 22.07.2010. The accused person again failed to comply with the terms of the second agreement, for which, the complainant issued a demand notice to the accused person on 10.01.2012. After receipt of the said notice, the accused person and the complainant again entered into a final memorandum of agreement on 31.05.2014, whereby the accused person promised to return the amount of Rs.23,00,000/- to the complainant along with interest in two installments i.e., Rs.10,00,000/- on 30.06.2014 and Rs.13,00,000/- on 31.07.2014. As accused failed to provide the flats, lastly, the accused persons also promised to the complainant to pay Rs.25,00,000/- along with interest. The accused person thereafter instead of making cash payment, he issued five numbers of cheques in favour of the complainant. As per instruction of the accused person, the complainant has deposited the above cheques in the Bank account on 01.12.2014 in the SBI, PBB, Nagaon Branch for encashment but those were returned dishonoured due to "insufficient fund" on 17.12.2014. Resultantly, the complainant issued another demand notice to the accused person, which was duly received by the accused on 11.01.2015. In spite of receipt of the notice, the accused person failed to make any payment. Hence, the case under Section 138 of NI Act was filed by the complainant.

4. In support of the allegations made, the complainant examined himself and exhibited certain documents while the defence examined none. Plea of defence is that he issued the cheques as security.

5. At the conclusion of trial, learned trial court held the accused guilty under Section 138 of NI Act and sentenced to simple imprisonment for 12 months and to pay compensation of Rs.40 lakhs since two years have been elapsed from the date of issuance of cheques of Rs.25 Lakhs, it was directed that the accused will undergo simple imprisonment for another 4 months, in default of payment of compensation.

6. Appeal preferred against the said impugned judgment was dismissed and the appellate court upheld the trial court decision vide judgment and order dated 19.07.2