A cheque issued as security still constitutes liability under the Negotiable Instruments Act, and failure to appear in court leads to an adverse inference against the accused.

JUDGMENT :

PARTHIVJYOTI SAIKIA, J.

1. Heard Mr. A.R. Shome, the learned counsel appearing for the petitioners. Also heard Mr. S. Nawaz, the learned counsel representing the sole respondent.

2. This is an application under Section 397 read with Section 401 of the CRIMINAL PROCEDURE CODE challenging the judgment and order dated 30.05.2022 passed by the learned Addl. Sessions Judge, Sivasagar in Criminal Appeal No.47(4)/2019 affirming the judgment dated 05.11.2019 passed by the learned Addl. Chief Judicial Magistrate, Sivasagar in C.R. (N.I.) Case No.27/2018.

3. In fact, the petitioners were convicted under Section 138 of the N.I. Act.

4. The petitioner No.2 Rajib Gogoi being the proprietor of M/S. Rajiv Steel Fabrication, borrowed a sum of Rs. 3,50,000/- from the respondent. On 27.02.2017, the money was paid accordingly.

5. Thereafter, on 15.02.2018, the present petitioner no.2 had issued a cheque bearing No.000759 for an amount of Rs. 3,50,000/- to the respondent. The cheque was presented to the Bank and on 17.03.2018, it was dishonoured on the ground “exceeds arrangement”. Therefore, the respondent issued a notice to the petitioner no.2 demanding the money. On 10.04.2018, a notice was issued to the petitioner no.2 and the same was accepted by him on 12.04.2018. The money was not paid. Therefore, a complaint case was filed.

6. During the trial, the respondent and the petitioner no.2 examined one witness each.

7. The petitioner no.2 took a plea that he had actually borrowed a sum of Rs. 1,50,000/- from the respondent and in lieu of that, he had agreed a plot of land to the respondent. According to the petitioner no.2, the said deed did not materialise and he had returned an amount of Rs. 50,000/- in cash to the respondent and for the remaining amount of Rs. 100,000/- the petitioner no.2 gave a blank cheque to the respondent as security.

8. The respondent examined himself as the complainant. But the petitioner no.2 did not examine himself, rather he examined his cousin called Lila Bora. The witness Lila Bora has stated that the petitioner no.2 has sold two bighas of land to the respondent. But the father of the petitioner no.2 came into the scene and demanded that the petitioner no.2 should return the land and take back the money paid by him to the respondent. In this way, the witness has stated, the petitioner no.2 paid an amount of Rs. 50,000/- in cash to the respondent and promised to return the remaining Rs. 1000,00/- in instalments. According to the witness Lila Bora, the respondent did not agree to the said proposal and demanded that he should issued a cheque of Rs. 1000,00/- and accordingly the petitioner no.2 issued the cheque to the respondent.

9. On the basis of the evidence on record, the trial court convicted the petitioner no.2.

10. He filed an appeal before the court of Sessions being Criminal Appeal No.47(4) of 2019.

11. The appellate court on the basis of Bidyadhar v. Manikrao , AIR 1999 SC 1441 held that the petitioner no.2 failed to appear in the witness box and did not state his own case on oath and also did not offer himself to be cross-examined by the other side meant that the case set up by him is not correct and the said fact will give rise to an inference adverse against him under Section 114 of the Indian EVIDENCE ACT .

12. Primarily, for the aforesaid reason, the appeal was dismissed.

13. I have gone through the trial court judgment as well as the appellate court judgment.

14. Mr. Nawaz, the learned counsel for the respondent has pointed out that the N.I. Act does not per se curve out any exception in respect of a “security cheque.” In order to but