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2025 Supreme(Online)(Gau) 12165
HIGH COURT OF GAUHATI
N. Unni Krishnan Nair, J
Shirajul Islam – Appellant
Versus
Sashi Prabha Lahkar – Respondent
Crl.Rev.P./499/2014
For the Appellants/Petitioners: A. Ahmed, S. Rahman, A. Begum, A. Alam, B. Islam
For the Respondents: H. Rajbongshi, B. P. Sinha
In a prosecution under Section 138 of the Negotiable Instruments Act, where the accused fails to rebut the statutory presumption under Section 139 and admits the underlying liability, the conviction is sustainable; however, courts may modify the sentence in consideration of prolonged litigation periods.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Presumption of debt - Conviction maintained - Accused failed to rebut statutory presumption under Section 139 regarding existence of legally enforceable debt - Plea of security cheque not substantiated - Appellate court decision upheld regarding conviction.
(B) Sentencing - Modification of sentence - Due to 14-year lapse since offence, court exercised discretion to set aside substantive sentence of imprisonment while maintaining compensation requirement.
Facts of the case:
The petitioner took financial assistance from the respondent to purchase land, providing a cheque for Rs. 1,00,000/- as partial repayment. The cheque was dishonoured due to insufficient funds. Despite receiving a legal notice, the petitioner failed to pay. The Trial Court convicted the petitioner under Section 138 of the N.I. Act, sentencing him to six months simple imprisonment and ordering compensation of Rs. 1,40,000/-. The Appellate Court upheld this conviction and added a cost of Rs. 5,000/-.
Findings of Court:
The court affirmed the trial and appellate court's finding that the accused failed to rebut the statutory presumption under Section 139. The court noted that the issuance of the cheque, dishonourment, and receipt of notice were established. However, acknowledging the 14-year delay, the court commuted the prison sentence to compensation and fine payments.
Issues: (1) Whether the cheque was issued for a legally enforceable debt. (2) Whether the presumption under Section 139 was rebutted. (3) Whether the sentence requires modification due to the passage of time.
Ratio Decidendi: Where an accused admits issuance of the cheque and fails to provide convincing evidence to rebut the presumption under Section 139 of the Negotiable Instruments Act, the conviction under Section 138 is justified. Appellate interference is not warranted unless perversity or illegality is demonstrated.
Result: Revision petition disposed of; conviction maintained; sentence of imprisonment set aside; compensation and costs ordered to be paid within specified time.
| Table of Content |
|---|
| 1. summary of procedural history and factual background leading to the revision petition. (Para 1 , 2 , 3 , 4) |
| 2. evaluation of evidence, statutory presumptions under section 139 n.i. act, and affirmation of conviction. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 3. sentencing modification based on the lapse of time since the offense date. (Para 14 , 15 , 16) |
Heard Mr. A. Ahmed, learned Amicus Curiae, appearing for the petitioner. Also heard Mr. B. P. Sinha, learned counsel, appearing for the State.
2. The present criminal revision petition has been instituted assailing the Judgment dated 30.10.2014, passed by the learned Additional Sessions Judge No.II, Kamrup (M), Guwahati, in Crl.A.No.94/2013, upholding the conviction and sentencing, including the compensation, imposed by the learned SDJM (S)-II, Kamrup, vide Judgment dated 17.04.2013, passed in C.R. Case No.1847/2011.
3. The respondent, herein, as complainant had instituted the complaint case being C.R. Case No.1847/2011, under Section 138 of the N.I Act of 1881. In the said complaint petition it was contended that the petitioner, herein, had taken financial assistance from the respondent to cope with his financial need and against which the petitioner, herein, had issued one cheque bearing no.061633 dated 07.04.2011, for an amount of Rs.1,00,000/- (Rupees One Lakh), drawn on State Bank of India, South Guwahati Branch. It was further contended that on 02.06.2011, the cheque was deposited by the respondent, herein, however, the same was dishonoured on account of ‘Insufficient Fund’ in the account of the petitioner, herein. It was further contended that the respondent, herein, issued a legal notice dated 14.06.2011, through registered post with acknowledgment due, on 14.06.2011, to the petitioner, herein, demanding payment of the cheque amount. The said payment not having been made the complaint case came to be instituted.
The learned Trial Court upon appreciating the evidences adduced before it by the parties to the proceedings, proceeded vide Judgment dated 17.04.2013, to convict the petitioner, herein, under Section 138 of N.I. Act, 1881, and sentenced him to undergo Simple Imprisonment for 6(six) months and further to pay a compensation of Rs.1,40,000/- (Rupees One Lakh Forty Thousand) to the respondent, herein, in default to undergo Simple Imprisonment for 1(one) month.
The petitioner, herein, being aggrieved by the Judgment dated 17.04.2013, assailed the same, before the learned Session Judge, Kamrup (M). The appeal was taken up for consideration by the learned Additional Sessions Judge No.II, Kamrup (M), Guwahati.
The Appellate Court on appreciating the evidences coming on record, proceeded vide Judgment dated 30.10.2014, to dismiss the appeal and thereby uphold the conviction of the petitioner, herein, by the learned Trial Court.
The learned Appellate Court further directed payment of an amount of Rs.5000/- (Rupees Five Thousand) as cost to the respondent, herein, along with the amount of compensation payable to her.
Being aggrieved the petitioner has instituted the present proceedings.
4. I have heard the learned counsel for the parties and also perused the materials available on record.
5. The learned Trial Court upon appreciating the evidences coming on record had framed the following issues for consideration;
“(1) Whether the accused issued the cheque for the discharge of any legally enforceable debt or liability ?
(2) Whether the cheque was dishonored for insufficient funds in the account of the accused ?
(3) Whether the accused received the demand notice issued by the complainant regarding the dishonor of the cheque ?
(4) Whether the accused has committed the offence under section 138 of the Negotiable Instruments Act, 1881 ? ”
6. On a consideration of the said issue with regard to the issue as to whether the cheque was for discharge of any legally enforceable debt or liability, the learned Trial Court drew the following contentions;
“9. The compl
