Page No.# 1/10 GAHC010081782025 2025:GAU-AS:5302 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./132/2025 REOSIL BASUMATARY S/O- LATE MWNBARU BASUMATARY, R/O- VILL- BAIKHUN GAON, PS KAJALGAON, DIST- CHIRANG, BTR, ASSAM VERSUS RITA HARDWARE STORE AND ANR SITUATED AT KAJALGAON, DIST- CHIRANG, REP BY ITS PROPRIETOR MAHAVIR PRASAD LAKHOTIA, S/O- LATE SOHAN LAL LAKHOTIA, R/O- UDAY PUSPA VATIKA, WARD NO. 10, PO AND PS- BONGAIGAON, DIST- BONGAIGAON, ASSAM, PIN- 783384 2:THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR ASSA Advocate for the Petitioner : MR. A M AHMED, P. GHOSH,B DAS,MRS S RAHANA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 28.04.2025 Heard Mr. A.M. Ahmed for the petitioner as well as Mr. M.P. Goswami, learned APP for the State respondent No. 1. Page No.# 2/10 2. By this application under section 438 read with section 442 and 520 of the BNSS, 2023, the petitioner has assailed the judgment and order dated 18.03.2025, passed by the learned Addl. Sessions Judge, Chirang, Kajalgaon in Criminal Appeal No. 18 of 2024. By the said judgment and order, the learned appellate Court had affirmed the judgment and sentence dated 21.10.2024, passed by the learned Additional Chief Judicial Magistrate, Chirang, in NICR Case No. 13 of 2021, thereby convicting the petitioner under section 138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for a period of 6 months and also to pay a fine of Rs.17.00 lakh (Rupees seventeen lakh only) to the respondent No. 1 /complainant with default stipulation. 3. The learned counsel for the petitioner has submitted that the case of the respondent No. 1 in the complaint case was that he is the proprietor of M/s. Rita Hardware Stores located at Kajalgaon, Chirang. He has alleged that the petitioner is a government contractor and had purchased G.C. tin sheet and cement (building materials) of Rs.12,14,034/- from the respondent No. 1 on credit vide several invoices between 10.10.2020 to 10.01.2021. Against the said liability, it was alleged that the petitioner had issued a cheque bearing No. 979879 dated 30.08.2021 against his bank account No. 36608966105, which was deposited by the respondent No. 1 in his account maintained with State Bank of India, Kajalgaon Branch, which was returned vide cheque return memo dated 22.09.2021, due to insufficient funds. By projecting that despite the petitioner being served with an advocate’s notice dated 05.10.2021, owing to non-payment, the complaint case was filed. 4. On receipt of summons, the petitioner appeared before the learned Trial Court and on pleading not guilty, the matter was tried. In support of the Page No.# 3/10 complaint, the respondent no. 1 had examined three witnesses including himself and had exhibited 41 documents during trial. On closure of evidence, the petitioner was examined under section 313 CrPC. On an appreciation of the evidence on record, the order of conviction and sentence was passed, which is referred above. 5. The petitioner had preferred an appeal which was dismissed and the appellate Court modified the sentence and directed the petitioner to undergo simple imprisonment for 3(three) months and to pay a fine of Rs.17.00 lakh with further default sentence of 3(three) months on failure to pay the fine. 6. Aggrieved by the said appellate judgment, the present criminal petition has been filed. 7. Referring to the grounds for this revision, the learned counsel for the petitioner has submitted that during cross-examination of PW-1 (complaint/respondent no.1), he had stated that whenever customers purchase materials from his store, he issues the original voucher to the customers. Accordingly, is submitted that in this case the respondent No. 1 had exhibited the original vouchers before the learned trial Court which raises doubt with regard to the authenticity of the vouchers. 8. It is submitted that the petitioner had made a prayer before the learned trial Court for sending the cheques and invoices for forensic examination. However, the learned trial Court had rejected his prayer. However, on the issue being raised, the learned appellate Court also failed to appreciate that and did not exercise its power to send the cheques for forensic examination. 9. It is also submitted that the cheque in question was issued by the Page No.# 4/10 petitioner as security and the petitioner could not have been convicted on the basis of cheque given for security and not in discharge of his liability. Accordingly, it is submitted that in the absence of forensic examination of the invoices and cheque, the petitioner has suffered irreparable prejudice. No other grounds for this revision have been urged or pressed into service. 10. The learned APP has submitted that as the impugned judgment arises out of a complaint case where the State is not a party, he has a very limited role in this criminal revision petition as the State is only a formal party and he is not having any records. However, he has submitted that on a cursory perusal of the impugned judgment by the learned trial Court as well as the learned appellate Court, he has observed that the petitioner herein has taken a contradictory plea because while he disowns the signature on the dishonoured cheque, but on the other hand he takes a defense that the cheque was issued for the security only. 11. Considered the submissions made by the learned counsel for the petitioner as well as the learned APP. Also consider the materials available on record. 12. The point raised by the learned APP appears to have force because in paragraph 10 of the judgment, the learned first appellate Court had recorded that the petitioner has taken a defence that the cheque was not issued in discharge of a legally enforceable debt but was rather a security instrument. Therefore, notwithstanding that the petitioner has denied his signature on the cheque and has prayed before the learned trial Court for forensic examination of his own signature, but the fact remains that he has admitted the cheque to have been issued as a security. Therefore, the presumption of a validity of the signature is inherent in the instrument itself. Page No.# 5/10 13. Moreover, having not found any reference to the defence evidence in the trial Court judgment as well as in the appellate court judgment, on a query made by the Court, the learned counsel for the petitioner has submitted that the petitioner did not stand in the witness box to adduce defence evidence. Therefore, this is a case where the petitioner disowns his signature in the cheque but did not give any oral evidence to deny his purported signature in the cheque. The Court has carefully examined the cross- examination of PW-1. From the nature of cross- examination of PW-1, it does not appear that the petitioner has been able to demolish that part of the evidence of PW-1 where he has stated that the petitioner had issued the cheque for a sum of Rs.12,14,034/- which was returned dishonored by the petitioner’s bank on 22.09.2021 by citing “insufficient funds”. Accordingly, we do not find any fault with the order of the learned trial Court refusing sending of the cheque for forensic examination on the ground that it was an afterthought, which was belatedly raised and lacked sufficient foundation. The Court is not a forensic expert, however, on a bare perusal of the photocopy of the dishonoured cheque, which is available at page 97 of this criminal petition, the signature of the petitioner contained therein has a remarkable resemblance with the signature of the petitioner which is available in the vakalatnama appended to this criminal petition as well as the signature of the petitioner’s which appears in the affidavit filed in support of this criminal petition. However, no conclusive remark is made by the Court as the Court is not a forensic expert. 14. It is observed that in course of trial, the respondent No. 1, as PW-1, had exhibited 30 original invoices bearing various separate serial nos. and different dates, which are marked as Ext. P-3 to Ext. P-32. The PW-1 has exhibited the seal and signature of the petitioner on all those exhibited Page No.# 6/10 documents, which is marked as P-3(2) to P-32(2), in seriatim. In the cross- examination of PW-1, the petitioner has not been able to demolish the evidence of PW-1 and moreover, the petitioner has miserably failed to prove that the signature on the cheque [Ext.P-1(1)] or that in Ext. P-3(2) to Ext.P-32(2) were not his signature. 15. Moreover, the Court does not find merit in the submissions made by the learned counsel for the petitioner that in cross- examination of PW-1, he has admitted that he gives the original invoice to the customers and therefore, the availability of the original invoices in the hands of the respondent No. 1 was doubtful. By the said Ext. P-3 to Ext.P-32, it is apparent that the original invoices were given to the petitioner which was returned back after affixing his seal and after putting his signature in due acknowledgement of receipt of articles for which those invoices were issued. 16. Therefore, there is no doubt that the dishonoured cheque (Ext. P-1) which was handed over by the petitioner to the respondent no. 1 was in discharge of his debt. The said concurrent finding by the learned Trial Court and the learned Addl. Sessions Judge are affirmed. 17. The petitioner’s plea that the cheque was given for security is not found to be acceptable in absence of any proof of existence of any agreement between the petitioner and the respondent No.1, which mandated the respondent No. 1 to hold the cheque only as security. Moreover, the petitioner has not examined himself in his defence to establish the said plea that the cheque dated 30.08.2021 was issued for security. It is not the defence of the petitioner that the cheque which was issued for security was given with his forged signature. Therefore, the Court is of the considered opinion that the learned trial Court had rightly refused to send the cheque in question (Ext. P-1) Page No.# 7/10 for forensic examination of the signature because the petitioner is found to have admitted handing over the said cheque to the respondent No. 1. We take the said view because if the petitioner admits that he has forged his own signature i.e., Ext.P-1(1) and gave it to the respondent No. 1, the petitioner would have exposed himself to the offence of forgery, which is a higher offence with regard to punishment prescribed than one prescribed under section 138 of the NI Act. Therefore, we are in agreement with the submission made by the learned APP that the plea of issuing a security cheque is contradictory to the stand of the petitioner that the cheque was not issued for payment of any debt. This is a self-defeating argument. 18. Therefore, on admission of the petitioner that he had hand over the cheque (Ext. P-1) to the respondent No. 1, on which his signature [Ext.P-1(1)] has been proved, the respondent no.2 has discharged his initial burden and the onus has now shifted on the petitioner to prove that the said cheque was issued for security or that it did not commensurate to the value of the 30 invoices exhibited by the respondent No. 1 as Ext.P-3 to Ext.P-32 respectively. 19. In this regard, we find that the learned trial Court has also discussed the issue by posing a question that as it is proved that the petitioner had issued the cheque to the respondent No. 1, then onus shifts upon the petitioner as to why he had issued the cheque. The learned trial Court is found to have correctly appreciated the issue in paragraph 16 of the order where it has been mentioned that supposing if the signature of the petitioner was not in the cheque, then the reason for dishonor of the cheque in the dishonor memo would have been stated as “signature mismatch” instead of “insufficient funds”. The learned trial Court has correctly appreciated that the petitioner has not denied the seal and signature over the invoices which was duly proved by the respondent No. 1. The Page No.# 8/10 findings by the learned first appellate Court would be a concurrent finding of fact on the said point. 20. The learned trial Court has also appears to have correctly appreciated the issue because the petitioner had taken a plea that he took materials worth only Rs.1,50,000/- from the respondent No. 1 but he changed his stand in his statement recorded under section 313 CrPC where he took a plea that he took materials worth Rs.50,000/- only from the respondent No. 1. Accordingly, taking note of some business transactions between the petitioner and the respondent No. 1, learned trial Court has rightly drawn presumption under section 114, Illustration (f) of the Evidence Act, 1872 that the common course of business has been followed in the particular case. It may be stated that the learned trial Court, while referring to the seal and signature of the petitioner in Ext. P-3 to P- 32, being Ext.3(2) to Ext.32(2), has recorded a finding that the seal of the petitioner appears as “Reosil Basumotary Government Contractor Class 1 (A)” and also arrived at a finding that during the trial the petitioner has not denied that he is not a government contractor class 1 (A). Accordingly, the Court cannot find fault with the finding recorded by the learned trial Court that the signatures of the petitioner over Ext.P-1 and Ext.P-3 to P-32, being Ext.P-1(1) and Ext.P-3(2) to Ext.P-32(2) stands duly proved. Resultantly, the learned trial Court has correctly drawn presumption under section 139 of the NI Act, being a statutory presumption to the effect that the petitioner had issued the cheques towards his legally enforceable debt. 21. The learned counsel for the petitioner has taken a plea that although the learned first appellate Court took note of the non-sending of the cheque for forensic examination, but did not pass any order. In this regard, it is seen that the order by which the learned trial Court had rejected the prayer of the Page No.# 9/10 petitioner to send the cheques and invoices for forensic examination have not been assailed by the petitioner independently. Moreover, we find nothing in the order of the learned appellate Court that the relevant order by virtue of which forensic examination of invoices and cheque was refused is put to challenge. Therefore, at this third stage of the proceeding, the other two proceedings being before the learned trial Court and the learned first appellate Court, both counts, having rejected the plea of the petitioner for sending the cheque and invoices for forensic examination, this Court would be slow in accepting the plea of the petitioner when he is found to not have given an evidence to deny that the seal and signature at Ext. P-3 to P-32 were not his signature or that the signature of the petitioner, exhibited as Ext. P-1(1) was not his signature. In this regard, the Court is of the considered opinion that when the petitioner has admitted that he has handed over the cheque to the respondent No.1 for security purpose, the learned trial Court had correctly presumed dishonoured that cheque contained the signature of the petitioner, which was not disputed. 22. Accordingly, the Court not find any merit in this criminal petition even to issue notice on the respondent Nos.1 and 2. Accordingly, this criminal petition stands dismissed at the motion stage without issuance of notice on the respondents. 23. The Registry shall transmit a copy of this order to (1) Court of learned Additional Chief Judicial Magistrate, Chirang, to be made a part of record of NICR Case No. 13 of 2021; and (2) Court of learned Addl. Sessions Judge, Chirang, Kajalgaon, to be made a part of record of Criminal Appeal No. 18 of 2024. 24. Under the circumstances, the Court refrains from imposing any cost on the petitioner. Page No.# 10/10 JUDGE Comparing Assistant