Page No.# 1/14 GAHC010212512018 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./370/2018 RAJIB TANTI S/O SHRI PANCHANAN TANTI, R/O DHENDAI TEA ESTATE, PO BORJULI, UNDER RANGAPARA POLICE STATION, IN THE DISTRICT OF SONITPUR, ASSAM-784504 VERSUS DEBAJIT CHANDRA BARUAH S/O LATE BIPIN CHANDRA BARUAH, R/O DIBRU DARRANG TEA ESTATE, PO AND PS DHEKIAJULI, IN THE DISTRICT OF SONITPUR, ASSAM-784110, PRESENTLY RESIDING AT MAHALAXMI TEA ESTATE, PO BALIJAN, IN THE DISTRICT OF SONITPUR, ASSAM-784172 Advocate for the Petitioner : MR. K SARMA, MR. M BARUAH,MR. D DAS Advocate for the Respondent : MR. N BHARALI, MR S HUSSAIN,MR. B CHAKRABORTY,MS G Gayan BEFORE HON’BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND Advocate for the petitioner: Mr. K. Sarma Advocate for the respondent: Mr. B. Chakraborty Page No.# 2/14 Date on which judgment is reserved: 21.05.2026 Date of pronouncement of judgment: 28.07.2026 Whether the pronouncement is of the operative part of the judgment : Full judgment. Whether the full judgment has been pronounced : Yes JUDGEMENT AND ORDER (CAV) 1. This revision petition under Section 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 (CrPC for short) has been preferred against the judgment and order dated 30.08.2018 passed by the learned Additional Sessions Judge (F.T.C.) Sonitpur, Tezpur in connection with Criminal Appeal No. 3(S-1)/2017 upholding the judgment and order dated 09.01.2017 passed by the learned Additional Chief Judicial Magistrate of Sonitpur, Tezpur convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (NI Act for short) and sentencing him to undergo simple imprisonment for three months and to pay a fine of Rs. 6 lacs with default stipulation in connection with NI Case No. 21/2012. Factual matrix:- 2. The genesis of the case was that Shri Debajit Chandra Baruah lent Rs. 5 lacs in the month of November, 2011 to the accused/petitioner Shri Rajiv Tanti to meet his urgent need as he was in need of money and the amount was to be returned within three months but the petitioner failed to return the entire Page No.# 3/14 amount. Rajiv Tanti (hereinafter also referred to as the petitioner and/or accused) returned an amount of Rs. 45,000/- out of the total money borrowed within a period of three months and the amount of Rs. 4,55,000/- remained unpaid. 3. The respondent/complainant Shri Debajit Chandra Baruah approached the petitioner and requested him to pay the remaining amount. On repeated requests, the petitioner issued a cheque bearing No. 152182 of the HDFC bank, Tezpur of Rs.4,55,000/- on 01.03.2012 in favour of Shri Debajit Chandra Baruah (hereinafter referred to as the respondent or complainant). 4. On 28.05.2012, the respondent presented the cheque for collection in his bank at SBI, Tezpur in his account No. 10501648200 maintained with the SBI, Tezpur Branch, but the cheque was returned unpaid on the ground that the account of the petitioner was closed. On receipt of information from the Bank regarding the dishonour of cheque, the complainant/respondent issued a notice to the petitioner through his lawyer on 12.06.2012 and demanded payment of the cheque amount within 15 days from the date of receipt of notice. The notice was duly received by the petitioner on 18.06.2012 and after receipt of notice, the petitioner sent a reply to the respondent on 03.07.2012 through his Advocate denying the complainant's averments, but with false allegations of theft of cheque No. 152181 to 152200 in the last week of January, 2011. This impelled the respondent to file a complaint petition on 01.08.2012 along with his statement on affidavit under Section 200 of the CrPC. The Court took cognizance and summoned the petitioner who contested the proceeding.To substantiate his stance,the respondent examined three witnesses as follows:- a) PW1, Debajit Chandra Baruah(complainant); b) PW2, Dhriti Pallab Das (Manager Personnel, Banking division); Page No.# 4/14 c) PW3, Abhijit Sharma (Branch manager, HDFC Bank, Tezpur Branch). 5. On closure of prosecution evidence, the statement of the petitioner was recorded under Section 313 of the Cr.PC on the incriminating circumstances arising against him. The petitioner denied of having committed any offence under section 138 of the NI Act. The petitioner adduced his evidence as defense witness. Decision of the Trial Court:- 6. The Trial Court formulated several points for determination to decide this case but the issue in this case narrows down to:- a) whether the petitioner had issued the cheque bearing number 152182 of Rs. 4,55,000/- on 01.03.2012 for payment of the amount to the complainant from his account to discharge any debt or other liability;and b) whether the petitioner could prove that his cheques so issued were stolen by the respondent/complainant. 7. The Trial Court has elaborately discussed the evidence.The complaint petition and the statement under Section 200 of the CrPC has been reiterated by the respondent/complainant as PW1.He exhibited the dishonouredcheque as Exhibit-1 and he proved his signature as Exhibit-1(i). The petitioner on the other hand adduced his evidence as DW1 and denied his signature, Exhibit-1(i) on the cheque as his signature. However in his cross-examination, he categorically admitted that Exhibit-1(i) is his signature. 8. The Trial Court then held that it has been proved that the cheque, Exhibit-1 has been issued by the petitioner. The Trial Court has observed that Page No.# 5/14 the defense side had taken the plea that the cheque No. 152182 was not issued by the petitioner as the cheque Nos. 152181 to 152200 of the HDFC bank were missing from the chequebook of the petitioner andthe petitioner then lodged an FIR on 22.02.2012 at Rangapara P.S.whereupon the police registered a GD entry No. 626 dated 24.02.2012. The Trial Court has also observed that DW1 had testified in his examination-in-chief that he learnt that the respondent had stolen his lost chequebook including the cheque No. 152182 and the respondent then inserted the amount of Rs. 4,55,000/- in the cheque. 9. The Trial Court did not accept the defence of the petitioner, as no extract copy of the GD entry was produced by the petitioner. It was also observed by the Trial Court that DW1 stated that his cheques were stolen in the last week of January, 2011 and the FIR was lodged on 22.02.2012, i.e., after a year when the cheques were missing from the chequebook (or if the chequebook went missing). 10. The Trial Court did not find this statement of the petitioner reliable and it was held that it is not believable that a person would wait for about a year to lodge an FIR about a missing chequebook. It was also held that no explanation was offered by the DW1, why he had waited for a year before he decided to inform the police about the missing cheques. Contention of the petitioner about overwriting visible in the amount in figures on the dishonouredcheque, was also dismissed by the Trial Court as the amount was clearly written in words and the bank had accepted the cheque for collection by the complainant/respondent. 11. Inference has been drawn by the learned Trial Court on the evidence of PW1 wherein he stated that, earlier the petitioner used to borrow money and used to return the same. Under Section 139 of the NI Act, it was held that the complainant who was the holder of Exhibit No. 1, cheque had received the Page No.# 6/14 cheque for discharge of debt or liability. Plea of stolen cheques by the petitioner was not found to be reliable as the petitioner could not produce any evidence to substantiate the same. 12. It was also held by the learned Trial Court that the PW3, Branch manager of the HDFC bank at Tezpur testified that the account of the petitioner was closed due to non-transaction and was not closed on the instance of the bank, and thiswas proved through Exhibits- 9(i)and 9(ii) that the account of the petitioner has remained closed since 23.12.2009 and no financial transaction had taken place. This reveals the petitioner's conduct. 13. It has been held by the Supreme Court in NEPC Micon Ltd. Vs. Magma Leasing Ltd. reported in AIR 1999 SC 1952 that:- “when the cheque is returned by a bank with an endorsement 'account closed', it would amount to returning the cheque unpaid because ‘the amount of money standing to the credit of that account is insufficient to honour the cheque’, as envisaged in Sec 138 of NI Act." 14. PW 2, Dhriti Pallab Das, (Manager, Personnel Banking division of SBI, Tezpur Branch) stated in his evidence that the cheque No. 152182 of HDFC bank was dishonored. He has identified the Exhibit-4 as the cheque returning memo. After assessing the evidence of the witnesses, PWs-1, 2 and 3, the learned Trial Court held the petitioner guilty of offence under section 138 of the NI Act. Decision of the Appellate Court:- 15. The petitioner preferred an appeal against the judgment of the learned Trial Court and the appeal was registered as Criminal Appeal No. 3(S-1)/2017. The learned Appellate Court had considered the plea of the appellant that the respondents/complainant had failed to show any documents regarding lending Page No.# 7/14 of Rs. 5 lacs to the petitioner nor any documents were placed regarding returning of Rs. 45 Lacs by the petitioner, but did not accept his plea.The petitioner/accused also averred that after receipt of notice, the accused ascertained that the complainant was the miscreant who committed theft of the missing cheques and his reply to the legal notice was that the complainant had admitted the same in his evidence. The plea of the accused was that overwriting was visible in the amount written in the cheque. 16. The petitioner had also stated that he and the respondent/complainant had a good relation and while one day they were traveling together, the petitioner lost a chequebook with 13 cheques and after 13 months, an entry was made in the police regarding the same and this has been admitted by the complainant/respondent. 17. After considering the pleas taken by the petitioner and after considering the respondents case, it was held by the learned Appellate Court that the appreciation of evidence in the judgment of the learned Trial Court from paragraph 37 to 53 does not provide any scope for interference by the Appellate Court. 18. The learned Appellate Court held as:- “The PW1 said in cross examination that from the year 1991 to 2011 he and accused work in the same Tea Estate. PW1 was Acting Manager and accused was staff of the factory. The PW1 is the holder of the cheque and the presumption is always there that the same is issued for discharge, in whole or in part, of any debt or liability. The accused has not denied the fact that the complainant was the manager of the Tea Estate where accused used to work as factory staff. Being the Manager of a Tea Estate, the capacity of the complainant to give an amount of Rs.5,00,000/- as loan cannot be doubted. These facts does not dislodge the presumption that the accused being in good term with the complainant able to get a sum of Rs.5,00,000/- from the complainant without executing a document. It can be presumed that the Page No.# 8/14 complainant had the benefit of knowing the financial capabilities of his staff. The fact can be otherwise Interpreted keeping in view the evidence of the PW1 that accused having good relation with the PW1 for a decade succeeded in taking the money from the PW1 without executing any document. 16. Though the PW1 admitted of receiving the reply of the accused in response to the statutory notice wherein the accused informed regarding intimating the police regarding loss of a cheque book, the defence has failed to rebut the presumption basing on the same. In the reply (Exhibit- 6) it is written that in some of the cheques there was the signature of the accused and later on in cross examination the DW1(accused) said that in about 2(two) cheques of the chequebook contained his signature. Though the defence took the plea that a G D Entry was made in the police regarding the loss of the chequebook, the same is not exhibited by the accused/defence. It is not clear whether accused mentioned in the entry before police that there were signatures in some of the cheques. As per the accused he lost the cheque in the month of January 2011 and informed the police in the month of February 2012. The accused is not transacting in his bank account since the year 2009, but what prompted him one fine morning of January 2011 to inform the police that he lost the chequebook.The Learned Trial Court in paragraph 39 & 40 of the judgment has rightly came to the conclusion that the accused failed to explain the delay in informing the matter of loss of cheque book to the police and that the plea of the accused is unbelievable and unreliable. 17.The learned trial court has discussed in paragraph 41 of the judgment regarding the plea of the defence that there is overwriting over the numbers of the cheque. It is held that the amount in the cheque is written in words legibly and clearly. It may be added that the PW1 during cross examination has explained why there is overwriting over the amount. The PW1 said that as due to the money an altercation took place between them and the accused asked him to write the amount. The explanation of PW1 regarding overwriting on the amount is sufficient to come to a conclusion that accused is aware for what amount the cheque is issued.” 19. Heard learned counsel Mr. K. Sarma for the petitioner and learned counsel Mr. B. Chakraborty for the respondent. Page No.# 9/14 Arguments for the petitioner:- 20. Learned counsel for the petitioner has laid stress in his argument that the petitioner and the respondent were friends and they were working in the tea garden. The learned Trial Court as well as the learned Appellate Court ignored the fact that the cheque book belonging to the petitioner went missing. The petitioner was in the company of the respondent. The petitioner has alleged that the respondent committed theft of his cheque book. Learned counsel for the petitioner also laid stress in his argument that an FIR about the missing cheque book was lodged with the police, and this fact has also been ignored by the trial court as well as the appellate court. 21. It is not a case of deficiency of funds but a case of a closed account. Thus, no offence under the NI Act has been made out against the petitioner. It is submitted that the complainant managed to get one leaf from the chequebook and he had manipulated the cheque in his favour. There is no evidence that the petitioner borrowed money from the respondent. No witnesses were examined to this effect and no receipt has been exhibited that money was borrowed by the petitioner from the complainant/respondent. It is further argued that although the overwriting has been admitted by both the Courts, yet the petitioner was erroneously convicted under Section 138 of the NI Act. 22. The submission of learned counsel for the petitioner is that the Trial Court’s decison in NI Case No. 21/2012 at Para-41 clearly reveals that the Court has acknowledged the overwriting on the cheque. The Order of the Court dated 16.08.2008 in Criminal Appeal No. (3-1)/2017 clearly reveals that the petitioner made a prayer to exhibit a copy of the GD entry relating to the Page No.# 10/14 missing cheques in the Court, but the Appellate Court rejected the prayer of the petitioner to produce the GD entry. This reveals that the petitioner has been prejudiced as he was not allowed to exhibit the GD entry. Annexure-4 of this petition at page-39 clearly reveals the order passed by the Learned Appellate Court. 23. Learned counsel for the petitioner has laid stress in his argument that an FIR was lodged after realizing about the lost cheque leaflets as the petitioner had forgotten about the lost chequebook. It is further argued that the presumption under Section 139 of the NI Act only operates when a cheque is issued in discharge of a debt and that cheque is dishonoured, whereas in this case the cheque was dishonoured as account was closed and the cheque was not issued but the cheque was stolen. When no witnesses were produced to prove that an amount as substantial as Rs. 5 lacs was lent by the complainant to the petitioner, the petitioner ought to have been exonerated on benefit of doubt. No person will lend an amount as substantial as Rs 5 lacs, sans presence of witnesses. A proof of receipt or presence of witnesses is inevitable in such cases. Argument by the Complainant:- 24. Learned counsel for the respondent laid stress in his argument that there is a limited scope for revision, against concurrent findings of two Courts. It is submitted that under Section 139 of the NI Act, there is always a presumption against the accused until and unless this presumption is rebutted. It has also been admitted that the account of the accused/petitioner was closed way back in the year 2019. It is thus very absurd to report loss of a cheque book after 14 months when the cheque book was lost way back in the year 2011. Page No.# 11/14 25. The Court cannot ignore the fact that the cheque, as alleged was issued in the year 2012 i.e., on 01.03.2012, and in the proximate past i.e. on 22.02.2012, just before issuing the cheque, the FIR as stated was lodged by the petitioner relating to loss of theft of cheques from his chequebook, and GD Entry no. 626 dated 24.02.2012 was registered. It is submitted that this indicates the petitioner's unwillingness to repay the debt. Moreover, it is also submitted that the order dated 16.08.2018, passed by the learned Additional Sessions Judge, FTC, Sonitpur in Criminal Appeal No. 3(3-1)/2017, rejecting the petitioner's prayer to produce a copy of the GD entry to prove the lodgment of the FIR has not been challenged by the petitioner after the learned Appellate Court rejected the prayer, and now this cannot be agitated before this Court at the stage of revision. 26. Learned counsel for the respondent/complainant laid stress in his argument that although the petitioner had earlier denied his signature on the cheque, Exhibit-1(i), yet the petitioner has admitted his signature Exhibit-1(i) in his cross-examination. 27. The learned counsel for the respondent argued that the conduct of the petitioner is under cloud as his account was closed way back in the year 2009 and he has lodged an FIR relating to missing cheques in the year 2012. Analysis and Decision: - 28. I have given my thoughtful consideration to the submissions at the bar. No infirmity is detected in the decision of the learned Trial Court as well as the learned Appellate Court. The conduct of the petitioner appears to be absurd. It is not plausible that the petitioner was not aware of his closed account in the Page No.# 12/14 year 2009. Although denied, cheque has been allegedly issued by him after three years, i.e. in the year 2012. The argument of the petitioner that the complainant committed theft of his cheques appears to be absurd, as the complainant has stated that he was the Manager of the Tea Estate, whereas in the same Tea Estate, the petitioner was a staff, which is equivalent to a ministerial staff. Why would a Manager commit theft of cheques from a cheque booklet of the staff working under him. Moreover, no case has been registered against the complainant/respondent. A GD entry as alleged has been registered, but this GD entry was not proved. It has to be borne in mind that no FIR was registered after GD Entry, lest the petitioner would have provided the FIR number also. 29. It has been correctly held by the learned Trial Court that the petitioner failed to inform the police about the missing cheques for more than a year and as he waited for more than a year, his conduct appears to be doubtful. The Trial Court and the Appellate Court has correctly held that although overwriting is visible in the figure portion of the amount quoted in the cheque, Exhibit-1, yet, the amount has been clearly written in words in the Exhibit-1. The learned Appellate Court has correctly held that it is not clear whether the accused / petitioner mentioned in the entry before the police that there were signatures in some of the stolen cheques, and it was thus the remark by the Appellate Court that the accused was not transacting in his bank account since the year 2009, but what prompted him one fine morning in the month of January, 2012 to inform the police that he had lost his chequebook. 30. It would also be apt to mention at this juncture that the argument of the learned counsel for the petitioner that the complainant has admitted about the stolen cheques is not correct. The complainant has not admitted that he had Page No.# 13/14 stolen cheques from the petitioner. 31. As the plea of the petitioner that he had not issued the cheques and the cheques were stolen, was not found to be credible, it is held that the cheque, Exhibit-1 was issued by the petitioner in discharge of debt of Rs.5,00,000/- or Rs.4,55,000/- to the complainant/respondent. It is well presumed that the petitioner has resorted to a false and a very weak plea.It has been proved by the complainant beyond reasonable doubt that the cheque was issued against a closed account of the petitioner, which was closed way back in the year 2009. The plea of the petitioner through his N.I. Case as well as through his Appeal and through this revision petition, is not sustainable. The petitioner's conduct reveals that he lost his cheque in the year 2012, and the police was informed about lost cheques relating to a closed bank account in the year 2012 i.e. after 14 months since the petitioner lost his cheque. It can be well presumed that the petitioner issued the cheque in discharge of his debt as per Section 138 of the N.I. Act, and the petitioner failed to rebut this presumption under Section 139 of the N.I. Act. It has to be borne in mind that the petitioner has admitted his signature. 32. In view of the foregoing discussions, I record my concurrence to the decision of the learned Trial Court vide the judgment and order dated 09.01.2017 in connection with N.I. Case No. 21/2012 as well as the decision of the learned Appellate Court vide the judgment and order dated 30.08.2018 in connection with Criminal Appeal No. 3(S-1)/2017. 33. Although the decision of the trial court in NI Case No.21/2012 as well as the appellate court in Criminal Appeal No. 3(S-1)/2017 are upheld, the order of conviction and sentence is modified. Page No.# 14/14 34. I have considered the facts and circumstances of this case. This case has been continuing for a prolonged period. The order of conviction of the petitioner under Section 138 of the NI Act is upheld, but the sentence of S.I. for 3 months is set aside and the petitioner is sentenced under Section 138 of the NI Act to pay fine of Rs.5,50,000/- (Rupees Five Lacs Fifty Thousand only) within 04 (four) months from the date of this order. 35. The petitioner is thus convicted under Section 138 of the NI Act to pay a fine of Rs.5,50,000/- (Rupees Five Lacs Fifty Thousand only) and in default of payment of fine to undergo SI for 06(six) months. The petitioner is directed to pay fine of Rs.5,50,000/- (Rupees Five Lacs Fifty Thousand only) within 04 (four) months from the date of this order before the trial court. 36. Send back the records of Criminal Appeal No. 3(S-1)/2017 and the records of NI Case No. 21/2012. 37. Revision petition stands dismissed as this petition is bereft of merits. 38. No order as to costs. JUDGE Comparing Assistant