Court upheld the conviction under Section 138 of the Negotiable Instruments Act, affirming that the dishonoured cheque was issued in discharge of a debt, with the accused failing to rebut statutory presumptions.

JUDGMENT :

Mridul Kumar Kalita, J.

1. Heard Mr. D. Bora, learned counsel for the petitioner in Criminal Revision Petition No. 159/2017 and learned counsel for the respondent in Criminal Revision Petition No. 445/2017. Also heard Mr. S. Nawaz, learned counsel for the respondents in Criminal Revision Petition No. 159/2017 and learned counsel for the petitioner in Criminal Revision Petition No. 445/2017.

2. Since both these revision petitions have arisen out of the original judgment and order dated 14.12.2015 passed by the learned Trial Court, i.e., the Court of the learned Chief Judicial Magistrate, Nagaon, in C.R. Case No. 4047/2011, against which both the complainant as well as the accused have preferred appeals, hence, it is proposed to dispose of both the above-mentioned criminal revision petitions by this common judgment.

3. Criminal Revision Petition No. 159/2017 has been filed by the petitioner, Sri Nirmal Dutta, impugning the judgment and order dated 11.04.2017 passed by the learned Sessions Judge, Nagaon, in Criminal Appeal No. 2/2016, whereby the judgment and order, dated 14.12.2015, passed by the learned Chief Judicial Magistrate, Nagaon, in C.R. Case No. 4047/2011, by which the petitioner (accused) was convicted under Section 138 of the Negotiable Instruments Act, 1881, and was sentenced to undergo simple imprisonment for one year and to pay compensation of Rs. 6,50,000/- to the respondent No. 2, Sri Babul Ch. Dutta (complainant) was affirmed.

4. Whereas, Criminal Revision Petition No. 445/2017 was filed by the petitioner, Sri Babul Ch. Dutta (complainant), under Sections 397 and 401 of the Code of Criminal Procedure, 1973, seeking enhancement of the sentence imposed upon the accused as well as the compensation awarded to the complainant by the learned Chief Judicial Magistrate, Nagaon, by the judgment and order dated 14.12.2015, passed in C.R. Case No. 4047/2011, which was affirmed by the learned Sessions Judge, Nagaon, in Criminal Appeal No. 3/2016 by judgment and order dated 11.04.2017.

5. The facts relevant for consideration of the above-mentioned criminal revision petitions, in brief, are that the petitioner in Criminal Revision Petition No. 445/2017, namely Sri Babul Ch. Dutta, had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent No. 2 (accused), Sri Nirmal Dutta. It was stated in the complaint, inter alia, that in the month of March, 2011, the accused approached the complainant seeking a loan of Rs. 5,00,000/- due to urgent financial necessity. Accordingly, the accused borrowed the said amount from the complainant after executing a hand note, promising to repay the same on or before 17.05.2011. It was further stated in the complaint that the accused again borrowed an additional sum of Rs. 1,00,000/- and, in discharge of the said liability, issued a cheque bearing No. 138910 dated 17.04.2011. Upon presentation of the said cheque for encashment, the same was dishonoured; however, on the request of the complainant, the accused subsequently paid the cheque amount of Rs. 1,00,000/- to the complainant, and the dishonoured cheque was taken back by the accused.

6. Thereafter, after about two months, the complainant, Sri Babul Ch. Dutta, demanded repayment of the sum of Rs. 5,00,000/- which had been borrowed by the accused, Sri Nirmal Dutta. However, the accused refused to return the said amount. Consequently, the complainant, Sri Babul Ch. Dutta, lodged a First Information Report (FIR) against the accused, Sri Nirmal Dutta, at Nagaon Police Station.

7. On the basis of the said FIR, Nagaon Police Station Case No. 109