The main legal point established in the judgment is the rebuttable presumption under Section 139 NI Act and the burden of proof on the accused to rebut the presumption of discharge of debt or liability by a cheque.

JUDGMENT :

Heard Mr. A. Dasgupta, learned Senior counsel, assisted by Ms. B. Das, learned counsel for the petitioner. Also heard Mr. M.K. Das, learned counsel for the respondent.

2. In this revision petition, under Section 401, read with Section 397 Cr.P.C., the petitioner, namely, Shri Samir Dey, has put to challenge the judgment and order, dated 29.09.2016, passed by the learned Sessions Judge, Kokrajhar in Criminal Appeal No.14/2015. It is to be noted here that vide judgment and order, dated 29.09.2016, the learned Sessions Judge, Kokrajhar, has affirmed the judgment and order, dated 07.11.2015, passed by the learned Additional Chief Judicial Magistrate, Kokrajhar in CR Case No.505C/2014. It is also to be noted here that vide judgment and order, dated 29.09.2016, the learned Additional Chief Judicial Magistrate, Kokrajhar, has convicted the petitioner under Section 138 NI Act and sentenced him to pay a fine of Rs.5,00,000/-(Rupees Five Lacs) as compensation and, in default, to suffer imprisonment for a period of six months.

3. The background facts, leading to filing of this revision petition, are briefly stated as under:-

“The petitioner had taken a loan of Rs.4,93,000/-from the respondent, Smt. Purnima Dhar Goyary, with an assurance to return the same within a period of two months. But, the petitioner had failed to make payment of the loan amount. Then on 06.05.2014, he had issued a check, bearing No.849331, for a sum of Rs.4,93,000/-. Thereafter, on 24.06.2014, the respondent presented the cheque in the State Bank of India, Kokrajhar Branch in her account bearing No.32666655044, for encashment. But, the said cheque returned dishonoured on 27.06.2014 with the endorsement ‘insufficient fund’ . Thereafter, on 30.06.2014, the respondent issued a demand notice to the petitioner by registered post with AD intimating him about the dishonour of the cheque and demanding the cheque amount. The petitioner received the notice on 04.07.2014, but in spite of receipt of the notice, he failed to make payment of the cheque amount. Then, the respondent herein instituted a case under Section 138 NI Act before the Court of learned Additional Chief Judicial Magistrate, Kokrajhar, upon which the learned Court below has taken cognizance of the offence and issued process to the respondent to appear before the Court and to stand trial under the said sections of law. Accordingly, the petitioner appeared before the Court below and the learned Court below, then, explained the offence under Section 138 NI Act to the petitioner to which the petitioner pleaded not guilty and claimed to be tried. Thereafter, the learned trial Court examined the witnesses of the respondent and also examined the petitioner under Section 313 Cr.PC. Thereafter, the learned trial Court examined the witnesses of the petitioner, and thereafter, hearing the argument of learned Advocates of both sides, convicted the petitioner under Section 138 NI Act and sentenced him as aforesaid.

Being aggrieved, the petitioner preferred an appeal before the Court of the learned Sessions Judge, Kokrajhar and the learned Sessions Judge, Kokrajhar, after hearing the learned Advocates for both sides, dismissed the appeal vide judgment and order, dated 29.09.2016, in Crl. Appeal No.14/2015 and affirmed the judgment and order, dated 07.11.2015, passed by the learned Additional Chief Judicial Magistrate, Kokrajhar, in CR Case No.505C/2014.

4. Being highly aggrieved, the petitioner approached this Court by filing the present revision petition on the grounds that –

(i) The respondent, in her demand notice, has given only 7 days time; though the petitioner is entitled to 15 days time to make payment of the cheque amount,

(ii) The cheque, in question, was not filled up by the drawer and the learned Court below has held that the cheque was filled up by the drawer is not based on the evidence available on record,

(iii) That, the cheque, in question, was blank at the time of issuance and it was filled by the draw