JUDGMENT

Date : 28-11-2024

1. Heard Mr. P Kataki, learned counsel for the petitioner and B Sarma, learned Addl. PP, appearing for the respondent No.1, State of Assam. Also heard Mr. A.K. Bhuyan, learned counsel for the respondent No.2.

2. By way of the present application under section 397/401 Cr.P.C., the petitioner has challenged the judgment and order dated 24.09.2012 passed by the learned Addl. District & Sessions Judge (FTC), No.2, Kamrup at Guwahati in Criminal Appeal No. 15/2012, whereby and whereunder, the judgment and order dated 21.01.2012 passed by learned JMFC, Kamrup, Guwahati in CR Case C No.2750 /2004, convicting the petitioner for offence under section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer Simple Imprisonment for three months and to pay a fine of Rs.3,10,000/- was upheld.

3. The brief facts which are necessary for determination of the present lis is recorded herein below:

I. On 18.09.2004, the respondent No.2 filed CR c Case No.2750 /2004 under section 138 of the NI Act, 1881, inter alia alleging that on 18.02.2004, the accused petitioner took a loan of Rs.2,70,000/- from the respondent No.2 complainant for a period of five months and issued three numbers of cheques of different amounts on 18.02.2004, drawn on United Bank of India, Ulubari Branch Guwahati.

II. According to the complainant, on the loan not being paid the cheques were deposited on 26.07.2004 for clearance, which were dishonored for insufficiency of fund.

III. On 06.08.2024, the complainant issued a demand notice under section 138 NI Act demanding payment of the alleged outstanding due within 15 days from the date of receipt of the notice. It was also stated that notices were duly received by the wife of the accused, namely, Rajashree Das in the Guwahati address of the accused.

The CR case was tried by learned JMFC, Kamrup.

IV. During the course of trial, the complainant examined himself as PW-1 and a bank official as PW-2. The accused examined himself as DW-1 and his mother in law as DW-2 and also one advocate as DW-3.

4. After meticulous examination of the materials available on record including the deposition of the witnesses, the learned Magistrate concluded:

I. The accused had taken a loan amount of Rs.2,70,000 from the complainant and issued three cheques to the complainant and signatures in the cheques were not disputed.

II. The evidence on record does not support the plea of defence that accused had repaid the money availed from the complainant either before presentation of chqeue for clearance or after the three cheques were dishonored.

III. Accordingly, the petitioner has committed an offence under section 138 of the NI Act, more particularly on the background fact that the accused had taken the money from the complainant.

IV. It was established that cheques were issued in discharge of debt or liability towards the complainant and having failed to liquidate the loan due prior to presentation of the cheuqe after five months of the return of money as promised, the complainant was entitled to liquidate the same by presentation of the said three cheques.

5. Such decision of the learned magistrate was taken to appeal in Crl. A 15/2012 by the petitioner and after re-appreciation of the evidence, the learned appellate court by its judgment dated 24.09.2012 concluded that the learned trial court has not committed any error or illegality while passing the impugned judgment.

6. Mr. P Kataki, learned counsel has forcefully urged that the decisions are apparently perverse decision inasmuch as the complainant in his evidence in no unambiguous terms admitted that the cheques issued were security cheques and were not issued against liability and therefore, in the aforesaid backdrop the decision impugned are liable to be interfered with at the hands of this court inasmuch as, such perverse decision had also resulted in miscarriage of justice.

7. In support of his contention Mr. Kataki places reliance on the decision of the Hon’ble Ap