The burden of proof lies on the accused to show that payments made were towards the loan, which was not established in this case.

ORDER

Date : 12.08.2025

1. Heard Mr. A Ghosh, learned counsel for the petitioner. Also heard Mr. A.K Gupta, learned counsel appearing for respondent No. 2.

2. Ms. N Das, learned Additional Public Prosecutor is present.

3. The present Revision Petition under Section 397 read with Section 401 of the Cr.P.C has been filed against the judgment and order dated 15.03.2024 passed in Criminal Appeal No. 47 of 2023 passed by the Ld. Additional Sessions Judge, Barpeta, upholding the judmgnent and order dated 10.11.2023 passed by the Ld. Additional Chief Judicial Magistrate, Barpeta in N.I Case No. 149 of 2019 convicting the petitioner under Section 138 of the N.I Act, 1881 and sentencing him to undergo rigorous imprisonment for 6 months and to pay a compensation of Rs. 4,00,000/- (Rs. Four Lakhs) with a default stipulation to undergo simple imprisonment for another 4 months.

4. Mr. A Ghosh, learned counsel for the petitioner has assailed the impugned judgment and order dated 15.03.2024, specifically on the following grounds :

(i) It is submitted that the petitioner/accused had already paid Rs. 1,22,400/- in installments towards the repayment of the loan of Rs. 2,00,000/- which was taken from the complainant/respondent No. 2 and the complainant had also admitted the receipt of such amount.

(ii) The complainant has also not been able to show that such amount was received as repayment towards a different loan. Another ground which the petitioner/accused has taken is that no evidence was adduced before the Trial Court regarding the financial capacity of the respondent/complainant.

5. The learned counsel for the petitioner has relied on the cases of :

(I) John K. Abraham V. Simon C. Abraham and Another reported in (2014) 2 SCC 236.

(II) Basalingappa V. Mudibasappa reported in (2019) 5 SCC 418.

(III) Dashrathbhai Trikambhai Patel V. Hitesh Mahendrabhai Patel and Another reported in (2023) 1 SCC 578.

6. Relying on the above stated judgments, learned counsel for the petitioner has stated that it was incumbent on the part of the complainant to have explained his financial capacity and that it should have been proved before the Ld. Trial Court.

However, the same was not done.

7. The learned counsel for the petitioner also submits that the cheque was not sent for handwriting analysis to the forensic laboratory and as such, it has not been proved, in accordance with law. The learned counsel for the petitioner, therefore, prays that the impugned judgment and order dated 15.03.2024 may be quashed and set aside.

8. Mr. A.K Gupta, learned counsel appearing for respondent No. 2 has submitted that the loan of Rs. 2,00,000/- made to the petitioner/accused was done by way of cheque and it has been admittedly received and therefore, the question of financial capacity can only be invoked when there is a dispute about the receipt of the loan amount. However, in the present case, there is no such dispute as the amount of Rs. 2,00,000/- has already been received by the petitioner/accused and the same is not disputed.

9. Mr. A.K Gupta, learned counsel appearing for respondent No. 2 also submits that when the demand notice was served on the petitioner/accused, they had not stated anything about making any part payments towards repayment of the loan and therefore, the complainant/respondent No. 2 had no other alternative but to approach the Court.

10. Mr. A.K Gupta, learned counsel appearing for respondent No. 2 has also drawn the attention of the Court to paragraphs 28, 29, 30 & 31 of the impugned judgm