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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Kaushik Goswami, J.
Mr. Kanak Chandra Bordoloi, Son of Late Bhogi Ram Bordoloi - Petitioner
Versus
The State of Assam, Represented by P.P. and ors. – Respondents
Crl.Rev.Pet.No. 165 of 2018
Decided On : 25-03-2025
JUDGMENT :
KAUSHIK GOSWAMI, J.
Heard Mr. S. Nawaz, learned counsel for the petitioner. Also heard Mr. M.K. Das, learned counsel for the respondent No. 2 and Ms. S.H. Borah, learned Addl. Public Prosecutor for the State respondent.
2. By way of this petition under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.PC’), the petitioner is assailing the Judgment & Order dated 14.03.2018 passed by the learned Additional Sessions Judge, Sonitpur, Tezpur (hereinafter referred to as the ‘Appellate Court’) in Criminal Appeal No. 14(S-3) of 2016, whereby the appeal filed by the petitioner was dismissed by up-holding the Judgment & Order dated 15.09.2013 passed by the learned Additional Chief Judicial Magistrate, Sonitpur, Tezpur (hereinafter referred to as the ‘Magistrate Court’) in N.I Case No. 39/2013 registered under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as the ‘N.I. Act’).
3. The brief facts of the case is that a complaint petition was filed by the respondent No. 2 on 06.01.2014 alleging inter alia that the petitioner, upon seeking financial help from him by way of loan, he in good faith lend him a loan of Rs. 3,20,000/- (Rupees Three Lakhs Twenty Thousand) only upon the promise of the petitioner that the same will be repaid after 2 (two) months.
4. It is the further alleged case that after 2 (two) months, the respondent No. 2 had asked for his money and accordingly, the petitioner issued a cheque bearing No. 009825 dated 12.09.2012 of Assam Gramin Vikash Bank, Tezpur for Rs. 3,20,000/- (Rupees Three Lakhs Twenty Thousand) only in favour of the respondent No. 2 in discharge of the aforesaid loan. However, upon presentation of the said cheque, the cheque was returned back due to ‘insufficiency of funds’.
5. It is further alleged that thereafter, upon the request of the petitioner not to send legal notice and that to present the cheque in the month of December when he will have sufficient balance in his account, the respondent No. 2 represented the cheque in the Bank for payment on 10.12.2012. However, it is again dishonoured showing ‘insufficiency of funds’. Accordingly, it is alleged that legal notice was sent on 09.01.2013, demanding the petitioner to make the payment of the cheque amount, however, despite receipt of the notice, the said payment was not made. Accordingly, the complaint petition was filed, wherein the Magistrate Court took cognizance of the offence under Section 138 of the N.I. Act and after conclusion of trial, was pleased to find the petitioner guilty under Section 138 of the N.I. Act and accordingly convicted him and sentenced him to pay a fine of Rs. 3,80,000/- (Rupees Three Lakhs Eighty Thousand) only, in default, Simple Imprisonment for 5 (five) months.
6. Being dissatisfied with the Judgment of the Magistrate Court, the petitioner filed an appeal before the Appellate Court, wherein the Appellate Court by Judgment & Order dated 15.09.2016 was pleased to dismiss the appeal by up-holding the conviction given by the Magistrate Court. Hence, the present Criminal Revision Petition has been filed.
7. Mr. S. Nawaz, learned counsel for the petitioner submits that the petitioner, having discharged the onus under Section 118 of the N.I. Act has proved the defence by meeting the standards of preponderance of probabilities and hence, the Judgment & Order of both the Appellate Court as well as the Magistrate Court are totally erroneous in law.
8. He further submits that there being no legally enforceable debt due to the respondent No. 2, no offence under Section 138 of the N.I. Act is established and hence, the Judgment & Order of both the Magistrate Court as well as the Appellate Court warrants interference from this Court.
9. He further submits that the petitioner having questioned the financial capacity of the respondent No. 2, there could have been no legally enforceable debt. He further submits that part payment of the loan amount ha
The presumption of liability under the Negotiable Instruments Act is rebuttable, but the accused must provide sufficient evidence to meet the standard of preponderance of probabilities.
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Admission of cheque triggers presumption of debt under NI Act Sections 118(a), 139; security cheques attract Section 138 if liability exists; rebuttal by preponderance needed, not mere denial; revisi....
Signature admission on cheque raises presumption of debt under NI Act; accused must rebut by preponderance even if blank security cheque; revisional jurisdiction limited, upholds concurrent findings ....
The presumption under Sections 138 and 139 of the Negotiable Instruments Act mandates that once a cheque's issuance is admitted, it is presumed to be for a legally enforceable debt, shifting the burd....
Signature admission on cheque triggers Sections 118(a),139 NI Act presumption of debt discharge; accused must rebut by evidence, mere denial insufficient; revisional jurisdiction limited, no interfer....
Revisional jurisdiction limited to perversity, not reappreciating evidence. Section 139 NI Act presumption of debt from admitted cheque issuance rebuttable only by probable defence on preponderance o....
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 liabili....
The presumption of a legally enforceable debt under Sections 138 and 139 of the N.I. Act is strong and requires evidence to the contrary by the accused, which was not provided.
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