1. Revision against conviction under Section 138 NI Act — Cheque dishonour — Presumption and demand notice issues. (Para 2 , 3 )
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2026 Supreme(Gau) 1351
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SANJEEV KUMAR SHARMA, J.
Protima Dutta Kalita, W/o Sri Jibeswar Kalita – Petitioner
Versus
Smti Rina Borgohain, W/o Sri Ganesh Borgohain – Respondent
Crl.Rev.P./412 Of 2025
Decided On : 21-07-2026
Important Points
Under Section 138 NI Act, a notice using polite language like 'advise' can be a valid demand if it clearly conveys the requirement to pay. The presumption under Section 139 is not rebutted by mere omission of the loan date.
Subject
Criminal Law - Negotiable Instruments Act, 1881
Act Referred
Headnote
(A) Negotiable Instruments Act, 1881 - Sections 138, 139 - Presumption under Section 139 - Unless rebutted by the accused by cross-examination or leading evidence, the presumption that the cheque was issued for a legally enforceable debt stands - Mere omission of the exact date of the loan in the complaint does not rebut the presumption. (Para 5)
(B) Negotiable Instruments Act, 1881 - Section 138 - proviso (b) - Demand notice - The requirement of a demand for payment is fulfilled even if the notice uses polite language such as “advise” or “request”, as long as the notice as a whole conveys the necessity to make good the cheque amount - The court followed the settled principle that a polite expression is still a demand. (Paras 10-12)
Facts of the case:
The complainant lent a sum of Rs. 1,30,000 to the accused for her son's marriage. The accused issued a cheque in favour of the complainant against the debt. The cheque was dishonoured. A notice dated 09.01.2017 was sent by the complainant's advocate advising the accused to pay the cheque amount. The trial court convicted the accused under Section 138 NI Act and sentenced her to one year SI and to pay compensation of Rs. 3,00,000. The appellate court modified the sentence to six months SI and compensation of Rs. 2,60,000. The accused filed a revision challenging the conviction and sentence.
Findings of Court:
The court held that the accused admitted her signature on the cheque, invoking the presumption under Section 139. The accused failed to rebut the presumption by cross-examination or by leading evidence. The notice, though using the word “advise”, constituted a valid demand as it clearly conveyed the requirement to pay and warned of legal consequences. Therefore, both grounds raised by the revisionist were without merit.
Issues: (i) Whether the absence of the exact date of the loan in the complaint rebuts the presumption under Section 139? (ii) Whether the notice dated 09.01.2017 constituted a valid demand under proviso (b) to Section 138?
Ratio Decidendi: The presumption under Section 139 is not automatically rebutted by the omission of the loan date; the accused must actively rebut it. A notice using polite language like “advise” is a sufficient demand if the overall tenor of the notice requires payment.
Result: Revision petition dismissed.
(B) Negotiable Instruments Act, 1881 - Section 138 - proviso (b) - Demand notice - The requirement of a demand for payment is fulfilled even if the notice uses polite language such as “advise” or “request”, as long as the notice as a whole conveys the necessity to make good the cheque amount - The court followed the settled principle that a polite expression is still a demand. (Paras 10-12)
Facts of the case:
The complainant lent a sum of Rs. 1,30,000 to the accused for her son's marriage. The accused issued a cheque in favour of the complainant against the debt. The cheque was dishonoured. A notice dated 09.01.2017 was sent by the complainant's advocate advising the accused to pay the cheque amount. The trial court convicted the accused under Section 138 NI Act and sentenced her to one year SI and to pay compensation of Rs. 3,00,000. The appellate court modified the sentence to six months SI and compensation of Rs. 2,60,000. The accused filed a revision challenging the conviction and sentence.
Findings of Court:
The court held that the accused admitted her signature on the cheque, invoking the presumption under Section 139. The accused failed to rebut the presumption by cross-examination or by leading evidence. The notice, though using the word “advise”, constituted a valid demand as it clearly conveyed the requirement to pay and warned of legal consequences. Therefore, both grounds raised by the revisionist were without merit.
Issues: (i) Whether the absence of the exact date of the loan in the complaint rebuts the presumption under Section 139? (ii) Whether the notice dated 09.01.2017 constituted a valid demand under proviso (b) to Section 138?
Ratio Decidendi: The presumption under Section 139 is not automatically rebutted by the omission of the loan date; the accused must actively rebut it. A notice using polite language like “advise” is a sufficient demand if the overall tenor of the notice requires payment.
Result: Revision petition dismissed.
Legal Category Hierarchy
Advocates Appeared:
For The Petitioner: Mr B Sinha, Mr. H Islam
For The Respondent: C Kalita, L K Borah,Mr. D K Borah
For The Petitioner: Mr B Sinha, Mr. H Islam
For The Respondent: C Kalita, L K Borah,Mr. D K Borah
Table of Contents
2. Dispute over lack of specific loan date and sufficiency of demand notice — Notice used 'advise' not 'demand'. (Para 5 , 7 , 8 , 9 )
3. Revision dismissed — Conviction and sentence confirmed — Both contentions rejected. (Para 8 )
4. What is the effect of non-mention of exact loan date on presumption under Section 139 NI Act?
Mere non-mention of exact date does not rebut presumption under Section 139. Presumption applies once signature on cheque is admitted, unless rebutted by accused. (Para 5 )
5. How can the accused rebut the presumption under Section 139 NI Act?
Accused must rebut by cross-examination of prosecution witnesses or leading own evidence. Failure to discharge burden means presumption stands. (Para 5 )
6. Does a demand notice using polite language like 'advise' satisfy proviso (b) of Section 138 NI Act?
Yes, if the notice as a whole conveys the requirement to pay the cheque amount, polite expressions are treated as demand. The word 'advise' is legally a demand. (Para 10 , 11 , 12 , 5 , 7 )
ORDER :
SANJEEV KUMAR SHARMA, J.
Heard Mr. B. Sinha, learned counsel for the petitioner. Also heard Mr. L.K. Borah, learned counsel for the respondent.
2. This is an Revision Petition filed under Section 438/442 of the BNSS filed by the Revision Petitioner against the impugned Judgment & Order dated 14.07.2025 recorded by the Court of Sessions Judge, Golaghat, in Crl.A. No. 3/2023 upholding the conviction under Section 138 NI Act passed by the Court of the learned CJM, Golaghat as per Judgment & Order dated 21.02.2017 and modifying the sentence to undergo SI of 6 months and to pay compensation of Rs. 2,60,000/-.
3. The brief facts of the case are that the complainant/respondent and the accused/revisionist are well known to each other, and they had a good relationship between themselves. Once the revisionist came to the respondent's house and requested financial assistance of Rs: 1,30,000/- for her son's marriage, verbally promising to repay the amount to the respondent. Thereafter, considering the good relationship, the respondent agreed to pay the revisionist an amount of Rs. 1,30,000/- only, after she had arranged the said amount from her self-help group. Subsequently, on the respondent's repeated request to the revisionist for repayment of the borrowed money, the revisionist issued a cheque to the respondent, bearing No. 463045, dated 16.12.2016, of Rs. 1,30,000/-, drawn on the State Bank of India, Dergaon Branch, in her favor against the debt. In this regard, the revisionist had also executed a handwritten note regarding her debt and thereafter gave the handwritten note to the respondent, after affixing her signature over revenue stamps.
4. The learned CJM, Golaghat conducted the trial and, on conclusion thereof, convicted and sentenced the accused/revisionist to undergo S.I for 1 (one) year and to pay compensation of Rs. 3,00,000/- (Three Lakhs only), which decision was partly modified in appeal as aforesaid. The revisionist has urged only two grounds in the course of the hearing.
5. The first ground is that the complainant had not mentioned the exact date on which the revisionist had taken the sum of Rs. 1,30,000/- from the complainant. The accused/revisionist has not denied her signature on the cheque. That being the position, the presumption under Section 139 of the N.I. Act applies. It is a settled law that unless the said presumption is rebutted by the accused/revisionist either by cross-examination of the prosecution witnesses or by leading her own evidence, the same will stand, and merely because the complainant had not mentioned the exact date on which the money exchanged hands, the presumption would not stand rebutted.
Moreover, the revisionist, during cross-examination of the respondent/complainant and her witnesses, failed to discharge her burden of proving that she did not issue the cheque in question toward a legally enforceable debt. Therefore, I do not find any substance in this contention on behalf of the revisionist.
7. The second ground, which has been urged rather forcefully on behalf of the revisionist, is that there was no demand made by the complainant/respondent for payment of the cheque amount upon the dishonor of the cheque.
8. In this regard, the learned counsel has referred to the Notice dated 09.01.2017(Exbt.4) issued by the advocate for the complainant to the accused/revisionist.
9. It is pointed out by the learned counsel that by way of the said Notice, the accused/revisionist was only advised to pay the cheque amount, and no demand as such was made; as such, the requirement of Proviso (b) to Section 138 of the N.I. Act has not been fulfilled.
10. Proviso (b) to Section 138 of the NI Act says that nothing contained in Section 138 of the NI Act shall apply unless the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by
