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2022 Supreme(Gau) 809
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ROBIN PHUKAN, J.
Joluk Ninu S/o Gojo Ninu Proprietor Of "City Computer", Bank Tinali – Appellant
Versus
Ajay Agarwal Proprietor Of "Computer Solution" – Respondent
Crl.Rev.P.498 of 2014
Decided on : 10-11-2022
Advocate Appeared:
For the Appellant :MR. R J DAS Advocate
For the Respondent: MR.D K KOTHARI
Point of Law: Section 139 of N.I. Act provides for presumption in favour of holder:- “It shall be presumed, unless contrary is proved, that holder of a cheque received cheque of nature referred to in section 138 for discharge, in whole or in part, of any debt or other liability.”
Headnote:
Negotiable Instruments Act, 1881 - Section 138, 139, 87, 20 - Evidence Act, 1872 - Section 114(g) – Criminal Procedure Code, 1973 - Section 91 - Cheques Returned - Insufficient Fund - Respondent deposited both cheques at Bank for collection of said amount - But, bank returned both cheques with endorsement ‘insufficient fund’ – Petitioner has submitted that respondent has withdrawn relevant evidence and because of non-consideration of same by learned courts below in their judgments leads to perversity. Para 14
Finding of the Court :
It also cannot be said that there is any material alteration of the cheques and no adverse inference can be drawn against the respondent and sections 20 and 87 of the N.I. Act would not come into aid of the petitioner - Thus, having carefully considered the submissions of learned Advocates of both sides and also considering the facts and circumstances on the record of the learned court below, this court is of the view that the petitioner herein has failed to rebut the statutory presumption drawn under section 139 of the N.I. Act. There is nothing on the record to show that the learned courts below have committed any jurisdictional error. As submitted by Mr. Tiwari it cannot be said that the impugned judgments and orders of the learned courts below suffers from perversity. It is to be mentioned here that while exercising revisional jurisdiction the High Court cannot substitute its view for that of the trial court if two views are possible.
Result: Petition dismissed.
JUDGMENT :
Heard Mr. P.K. Tiwari, learned counsel for the petitioner and also heard Mr. B. Deka, learned counsel for the respondent.
2. In this criminal revision petition, under 397/401 of the Code of Criminal Procedure, the petitioner has challenged the legality, propriety and correctness of the judgment and order dated 13.11.2014, passed by the learned Sessions Judge, North Lakhimpur, in Criminal Appeal No. 43[4]/2013. It is to be noted here that vide impugned judgment and order the learned Court below has affirmed the judgment and order passed by the learned Chief Judicial Magistrate, Lakhimpur convicting the petitioner under section 138 of the N.I. Act and sentencing him to pay a fine of Rs. 5,000/-with default stipulation, in CR Case No.248/2009, under section 138 of N.I. Act.
3. The factual background leading to filing of the present application is briefly stated as under:-“Shri Ajay Agarwal, hereinafter the respondent, has a computer shop namely ‘Computer Solution’ in North Lakhimpur Town, and Sri Joluk Ninu of Itanagar, hereinafter the petitioner, came to the shop of the respondent and purchased computer, laptop, desktop and other computer accessories for a sum of Rs. 4,07,880/-by giving him a cheque bearing No. CCS No. 50-0701072 of State Bank of India, Ganga Branch and again on 15.05.2009 the petitioner came to the shop of the respondent and handed over an another cheque for a sum of Rs. 2,03,940/-bearing no. CCS No. 0701074 of State Bank of India, Ganga Branch, Itanagar. Accordingly, on 27.07.2009, the respondent deposited both the cheques at the State Bank of India, North Lakhimpur Branch, for collection of the said amount. But, on 04.08.2009, the bank returned both the cheques with the endorsement ‘insufficient fund’ in the account of the petitioner. Thereafter, the respondent has issued legal notice to the petitioner demanding payment of the cheque amounts. But, the petitioner had failed to make the payment despite of receipt of notice. Then the respondent had filed a complaint before the learned Chief Judicial Magistrate, North Lakhimpur, under section 138 of the N.I. Act. Upon the said complaint, the learned Chief Judicial Magistrate, North Lakhimpur, had taken cognizance and issued process to the petitioner to appear before him and to stand trial. Accordingly, the petitioner appeared before the learned court below and the learned court below had explained the particulars of offence to the petitioner, to which the petitioner had pleaded not guilty and claimed to be tried. Thereafter, examining the witnesses and hearing learned the Advocates of both the parties, the learned Chief Judicial Magistrate; North Lakhimpur has convicted the petitioner under section 138 of the N.I. Act and sentenced him as aforesaid. Being highly aggrieved, the petitioner had filed an appeal against the judgment and order of the learned Chief Judicial Magistrate, before the Learned Sessions Judge, North Lakhimpur. Thereafter, hearing learned Advocates of both the parties, the learned Sessions Judge, North Lakhimpur, in Criminal Appeal No. 43[4]/2013, affirmed the conviction and sentence awarded by the learned Chief Judicial Magistrate, North Lakhimpur.”
4. Being highly aggrieved the petitioner approached this Court by filing the present revision petition on the following grounds:-
[i] That, the learned courts below had erred in law by failing to consider that the blank cheques given by the petitioner to the respondent, which were not cheques, within the section 6 of the N.I. Act and as such the factum of their being dishonored, could not have constituted an offence under section 138 of the N.I. Act;
[ii] That, the learned courts below had failed to appreciate the evidence adduced by the respondent and the petitioner;
[iii] That, the learned court below also failed to consider that the petitioner had succeeded in rebutting the presumption in favour of the holder of the cheques under section 139 of the N.I. Act;
[iv] That, the learned court below
