Presumption under Sections 118 and 139 of N.I. Act and the debtor and creditor relationship were central to the court's decision.

JUDGMENT :

Heard Ms. S.B. Choudhury, learned counsel for the petitioner.

Also heard Mr. P. Choudhury, learned counsel for the respondent.

2. The petitioner has preferred this petition against the impugned judgment and order dated 15.11.2016 in connection with C.R. Case No. 112/2007 under Section 138 of Negotiable Instrument Act, 1988 (herein after referred as N.I. Act) passed by the learned Additional CJM, Jorhat, whereby the petitioner was convicted and sentenced to undergo simple imprisonment for a period of 6(six) months and to pay a fine of Rs.11,80,000/-which is twice the cheque amount of Rs.5,90,000/-, in default 6(six) months simple imprisonment. It is also directed that on realization of the amount i.e. Rs.11,80,000/-, the same was given to the complainant/opposite party as compensation.

3. The petitioner has also challenged the impugned judgment and order dated 22.06.2018 in Crl. Appeal No. 40/2016 passed by the learned Sessions Judge, Jorhat, whereby the conviction and sentence passed by the learned Additional CJM was upheld by dismissing the criminal appeal.

4. The case of the opposite party as complainant is that the complainant and the accused/petitioner are known to each other. During his financial crisis, the accused/petitioner approached before the complainant/opposite party and accordingly, the opposite party gave an amount of Rs.5,90,000/- to the accused/petitioner for a period of two months. On expiry of said period, the accused/petitioner handed over a cheque to the opposite/complainant bearing No. 324851 dated 15.08.2006 of Punjab and Sind Bank, Beltola Branch, Guwahati. The said cheque was deposited by the complainant in her account of SBI, Kotokipukhuri Branch, Jorhat for collection. However, the opposite party was informed by the bank officials that the cheque was returned by Punjab and Sind Bank, Boltola with a remark ‘insufficient fund’ in the account of the accused/petitioner. Thereafter, the complainant/opposite party issued demand notice through concerned lawyer to the accused/petitioner on 01.02.2007 which was received by the accused/petitioner on 10.02.2007 but the petitioner failed to repay the amount to the complainant. Finding no other alternative, the complainant filed a complaint petition before the court as per provision of the N.I. Act.

5. During trial, the complainant examined 5(five) witnesses including herself. The complainant had also marked six exhibits to substantiate her claim. The plea of the accused was denial. In support of his case, the accused/petitioner also adduced evidence of three witnesses. The learned trial court as well as the appellate court, after hearing the arguments of both sides, convicted the accused/petitioner, as aforesaid.

6. The learned counsel for the accused/petitioner has submitted that under the facts and circumstances of the case as well as the evidence of the witnesses does not indicate issuance of any cheque in favour of the complainant/opposite party by the accused/petitioner. The FIR as well as the application proved by the accused/petitioner reflected that the cheque bearing No. 324851 had been lost and the complainant/opposite party misused the same and falsely implicated the accused/petitioner. It is also submitted that the complainant herself deposed that the ink in signature and the date and amount are different on the cheque in question. Hence the impugned judgments are liable to be set aside.

7. It is also the submission of learned counsel for the accused/petitioner that the petitioner had never put the amount or name of any person on the said cheque which contained only his signature and date.

8. It is also contended that the complainant/opposite party as P.W.1 stated in her deposition that the ink used in signature and date on the cheque No. 324851 is different from the ink of name and amount put on the said cheque but in the deposition, P.W. 2, stated that the petitioner had put the amount and name on the said cheque in presence of the complainant/op