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Sri Dhiren Chandra Borah v/s Smti Pallavi Kalita


Company & Directors' Information:- SRI B L C PVT LTD [Active] CIN = U92111WB1981PTC033844

Company & Directors' Information:- R K CHANDRA PVT LTD [Strike Off] CIN = U36911WB1989PTC046753

Company & Directors' Information:- H CHANDRA PRIVATE LIMITED [Strike Off] CIN = U65990MH1952PTC008894

Company & Directors' Information:- H C CHANDRA & CO. PVT LTD [Strike Off] CIN = U20231WB1957PTC023337

Company & Directors' Information:- CHANDRA AND COMPANY PRIVATE LIMITED [Dissolved] CIN = U74999KL1952PTC000280

Company & Directors' Information:- R. CHANDRA LIMITED [Not available for efiling] CIN = U99999MH1953PLC009175

    Case No. Crl.Rev.P. 236 of 2009

    Decided On, 17 June 2020

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

    For the Petitioner: P. Katakey, Advocate. For the Respondent: K. Bhuyan, Advocate.



Judgment Text


1. This criminal revision petition, under Section 397 read with Section 401, Code of Criminal Procedure, 1973 (‘the Code’ and/or ‘the CrPC’, for short), is preferred against the judgment and order dated 13.04.2009 passed by the learned Additional Sessions Judge (FTC), No. 3, Kamrup, Guwahati (‘the appellate court’, for short) in Criminal Appeal no. 42/2007.

2. By the said judgment and order dated 13.04.2009, the appellate court had dismissed the appeal preferred by the petitioner as the appellant (hereinafter also referred to as ‘the accused’, at places, for easy reference) against the judgment and order dated 11.06.2007 passed by the learned Judicial Magistrate, 1st Class, Kamrup, Guwahati (‘the trial court’, for short) in Complaint Case no. 3982C /2004, thereby, affirming the judgment and order of conviction and sentence passed by the trial court. By the judgment and order dated 11.06.2007, the trial court found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (‘the NI Act’, for short) and he was sentenced to undergo simple imprisonment for 1 (one) year and to pay a fine of Rs. 2,00,000/-, in default of payment of fine, to undergo simple imprisonment for another 3 (three) months. It was ordered that the amount of fine, if paid, shall be paid to the complainant as compensation.

3. Before finding out the merit of the contentions raised in this criminal revision petition against the concurrent findings of the trial court and the appellate court, a brief narration of the facts stated in the Complaint Case no. 3982C /2004 is found necessary at first.

4. It was projected by the respondent no. 2 as the complainant (hereinafter also referred to as ‘the complainant’, at places, for easy reference) in the complaint that the accused was an employee of the Government of Assam in the Public Works Department. The complainant and the accused were known to each other. The accused, for certain purpose, borrowed an amount of Rs. 1,50,000/- on 10.03.2004 from the complainant with the assurance that he would return the amount within a period of 1 (one) month. When the accused failed to return the borrowed amount as per his assurance, the complainant made demands to him to make the payment. Thereafter, the accused, on 30.04.2004, issued a cheque bearing no. 633990 for an amount of Rs. 1,50,000/- in favour of the complainant on an account maintained by him at State Bank of India (SBI), Panbazar Branch, Guwahati. On receipt of the said cheque and as requested by the accused, the complainant presented the said cheque for collection on 14.10.2004 at her account bearing No. S/B 7017 maintained at United Commercial (UCO) Bank, Bonda Branch, Guwahati. The said cheque was returned unpaid by SBI to UCO Bank on the ground of insufficiency of fund in the account of the accused and the UCO Bank, in turn, intimated the information of such dishonour to the complainant vide its cheque return memo dated 16.10.2004. On receipt of the said information of dishonour, the complainant sent a demand notice dated 30.10.2004 through her advocate to the accused by registered post with A/D asking the accused to make payment of the amount of Rs. 1,50,000/- within 15 (fifteen) days from the date of receipt of the demand notice. It was asserted that the demand notice was received by the accused on 01.11.2004. When the accused did not pay the cheque amount within 15 (fifteen) days from the date of receipt of the notice, the complaint was filed by the complainant on 29.11.2004 before the Court of learned Chief Judicial Magistrate, Kamrup, Guwahati.

5. On receipt of the said complaint, it was registered as Complaint Case no. 3982C /2004. Thereafter, the learned Chief Judicial Magistrate transferred the complaint case to the Court of learned Judicial Magistrate, 1st Class, Kamrup, Guwahati for disposal. The trial court examined the complainant under Section 200, CrPC. After perusal of the complaint and the statement of the complainant recorded under Section 200, CrPC, the learned trial court took cognizance and finding a prima facie case for the offence punishable under Section 138 of the NI Act, issued process against the accused for his appearance to stand in trial. On receipt of summons, the accused appeared before the trial court. The particulars of the offence under Section 138 of the NI Act were stated to the accused and he pleaded not guilty and claimed trial.

6. During the course of trial, the complainant side examined 4 (four) nos. of witnesses viz. (i) P.W.1 - the complainant; (ii) P.W.2 - Sri Kalyan Bhagabati, an official from UCO Bank; (iii) P.W.3 - Sri Ranu Ranjan Deb, and (iv) P.W.4 –Sri Ranu Ranjan Deb. One witness viz. Sri Ranu Ranjan Deb, an official from SBI, was examined as P.W.3 and also as P.W.4. Thereafter, the accused was examined under Section 313, CrPC where his plea was of denial. Thereafter, the defence adduced evidence of one witness as D.W.1, who was, incidentally, Sri Ranu Ranjan Deb again. After closure of the evidence, the learned trial court upon appreciation of the evidence on record, had found the accused guilty of the offence under Section 138 of the NI Act and convicted and sentenced him, as stated above.

7. Aggrieved by and dissatisfied with the judgment and order of conviction and sentence of the trial court, the accused preferred an appeal under Section 374(3) of the Code before the Court of Sessions, Kamrup, Guwahati. The said appeal was registered and numbered as Criminal Appeal no. 42(K)/2007. The appeal was transferred to the Court of learned Additional Sessions Judge (FTC), No. 3, Kamrup, Guwahati for disposal.

8. The appellate court after hearing the learned counsel for the parties and after examination and perusal of the evidence on record, found no merit in the appeal of the accused and the same was dismissed by the impugned judgment and order dated 13.04.2019. The sentence passed by the trial court had been maintained and the accused was directed to surrender before the trial court to undergo the sentence.

9. Assailing both the judgments of the appellate court and the trial court, the accused as the petitioner, has preferred the present revision petition.

10. Heard Mr. R. Borpujari, learned counsel for the petitioner and Mr. B. Deka, learned counsel for the respondent.

11. Mr. Borpujari has submitted that the cheque no. 633990 dated 30.04.2004 (Exhibit-1), which was dishonoured due to insufficiency of fund in the account, was drawn on an account bearing no. 01190034048. It is submitted by him that the accused used to maintain a bank account bearing no. 01190034045 at the State Bank of India, Panbazar Branch, Guwahati. It is contended by him, by referring to the evidence of Sri Ranu Ranjan Deb, the employee of the State Bank of India, who deposed as P.W.3, P.W.4 and D.W.1, that the account no. 01190034045 was closed on 11.09.2003 on an application submitted by the accused to the bank. It is urged that the account no. 01190034045 was not maintained by the accused in the said bank whereas the statement of accounts placed before the court was in respect of account no. 01190034048. On the basis of the said statement of accounts, Mr. Borpujari has submitted, the charge under Section 138 of the NI Act could not have been held to be proved as against the accused.

12. Per contra, Mr. Deka has submitted that such a plea, as has been urged at this stage, cannot be discerned from the defences that were taken by the accused during the course of the entire trial. Such a plea was also not taken at the stage of appeal which is the final court for the purpose of findings on facts. Such a plea is not sustainable to be taken at the stage of revision which is preferred against concurrent findings of facts of the trial court and the appellate court.

13. I have considered the submissions of the learned counsel for the parties and have also gone through the materials on record.

14. In a proceeding in respect of an offence under Section 138 of the NI Act the Courts have to consider at first whether the ingredients of the offence under Section 138 have been complied with. As per Section 138, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person is returned by the bank unpaid either because of the amount of money standing to the credit of that person being insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account, such person, subject to the other conditions, shall be deemed to have committed an offence under the Section and be punished for a term which may extend to two years or with fine which may extend to twice the amount of cheque or with both. The complainant is required to present the cheque to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. In the event of dishonour of the cheque on its presentation for the reasons afore-mentioned, the payee or the holder in due course of the cheque has to make a demand for payment of the cheque amount by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. If the drawer of the cheque fails to make the payment of the amount within 15 days of the receipt of the said notice, the cause of action arises for filing of a complaint. In the context of the above, it is found that all the requisite formalities were complied with in respect of the case in hand and the case of complainant did not suffer from any procedural formalities.

15. It is provided that once the cheque is issued by the drawer, the presumption under Section 139 of the NI Act in favour of the holder gets activated. Section 139 of the NI Act provides for a presumption that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or liability. The initial burden lies upon the complainant to prove the circumstances under which the cheque was issued in his favour and that the same was issued in discharge of a legal debt or liability. It is for the accused thereafter to adduce evidence of such facts and circumstances to rebut the presumption that such debt does not exist or the cheque are not supported by any consideration. In the instant case, it was held that the accused had failed to discharge that burden by adducing such evidence even by the standard of preponderance of probabilities.

16. In so far as the issue raised on behalf of the petitioner is concerned, I find the same as not sustainable. The petitioner has failed to show from the evidence on record that any plea was taken to the effect that the account no. 01190034048 did not belong to him. Apart from cross-examining the witnesses from the complainant side, the accused had adduced evidence, without himself entering the witness box as a witness, by summoning a bank official from the State Bank of India, Panbazar Branch, Guwahati where both account no. 01190034045 and account no. 01190034048 were stated to be maintained. The accused could have definitely adduced evidence in respect of the fact that the account no. 01190034048 did not belong to him, but he chose not to do so. Rather, he sought to raise a plea that account no. 01190034045 was closed by him on 11.09.2003 by making an application (Exhibit-B) of even date. The evidence on record has established that the cheque no. 633990 dated 30.04.2004 (Exhibit–1) was dishonoured on presentation by the same bank i.e. State Bank of India, Panbazar Branch, Guwahati on the ground of insufficiency of funds in account no. 01190034045. Exhibit-3 is the cheque return memo issued by UCO Bank on 16.10.2004 and it indicated that the cheque no. 633990 dated 30.04.2004 9 (Exhibit-1) drawn for an amount of Rs. 1,50,000/- was dishonoured on the ground of insufficiency of fund in the account of the accused. Exhibit-6 is the cheque return memo of the State Bank of India, Panbazar Branch, Guwahati, exhibited by P.W.2, wherein the reason for dishonour was recorded as insufficiency of fund. There was no evidence brought on record by the accused to the effect that the said cheque was returned unpaid for the reason that the account did not belong to the person who signed the Exhibit-1 cheque and the account no. 01190034045 did not belong to him. I find that there was no challenge on the part of the accused in respect of the signature appearing in Extibit-1 cheque. The signatures appearing in Exhibit-1 cheque was found tallied with the signatures of the accused in the account opening form of account no. 01190034045 (Exhibit-1), exhibited by P.W.4. The same witness when he deposed as P.W.3 had deposed that Exhibit-1 cheque was issued from account no. 01190034045 maintained at State Bank of India, Panbazar Branch, Guwahati and this witness was not confronted with his said statement by the accused during his cross-examination. The plea that the account no. 01190034045 on which Exhibit-1 cheque was drawn, was closed on 11.09.2003 was disbelieved by the trial court and the appellate court with well recorded reasons. In such view of the matter, Section 146 of the NI Act also gets operational. Section 146 of the NI Act provides that the Court shall, in respect of a proceeding for an offence under Section 138 of the Act on production of bank's slip or memo having thereon official mark denoting that the cheque has dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.

17. The onus was on the accused to disprove the presumptions of law that can be drawn on the premises of Section 139 and Section 146 of the NI Act. On perusal of the materials in the record of Complaint Case no. 3982C /2004, I find no material wherefrom it can be inferred that such a defence plea was raised and any effort was made for rebuttal by the accused at any point of time during the course of the trial. Thus, such plea is not sustainable to be raised at the stage of revision against concurrent findings of fact of the trial court and the appellate court where all the defence pleas raised by the accused during the course of the trial were elaborately discussed and findings were reached. The pleas raised on the behalf of the accused were negated with recording of reasons.

18. The power under Section 401, CrPC enables this Court to exercise all the powers of the appellate court, when necessary, in aid of power of superinte

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ndence and supervision as a part of the power of revision conferred on this Court. If necessary, this Court can exercise all appellate powers. Section 401, CrPC which confers powers of an appellate court on the revisional court is only for limited purpose. But, this Court is required to exercise restraint in a revision under Section 397, CrPC read with Section 401, CrPC. In exercising its revisional power, this Court shall not ordinarily embark on a detail re-examination and re-appreciation of the oral and documentary evidence led by the parties before the trial court to come to a conclusion, contrary to those reached by the trial court and the appellate court. This court in revisional jurisdiction should not ordinarily interfere with the concurrent findings of facts unless those were perverse or arrived at by ignorance material and vital facts. In order to appreciate the contention raised by the accused, the evidence on record and the findings of both the trial court and the appellate court are re-visited for the limited purpose to find out whether there was any perversity or non-consideration of the relevant and vital facts. In the present case, this Court has not found anything to observe that the findings of facts arrived at by the trial and the appellate court suffer from any perversity or those were made without consideration of the relevant and vital facts. 19. In view of the above discussions, I find no merit in this revision petition to interfere with the concurrent findings of facts of the trial court and the appellate court. Resultantly, this criminal revision petition is dismissed. No cost.
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