Page No.# 1/12 GAHC010019162014 2025:GAU-AS:15075 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./499/2014 SHIRAJUL ISLAM AGE 59 YEARS S/O LT. SADER ALI R/O VILL- BIDYA NAGAR, P.O. GARIGAON, P.S. JALUKBARI DIST. KAMRUP, ASSAM. VERSUS SMTI SASHI PRABHA LAHKAR W/O LT. UTPAL LAHKAR R/O VILL- BORAGAON NATUN BASTI, P.O. GOTANAGAR, P.S. GORCHUK, GUWAHATI, DIST. KAMRUP M, ASSAM. Advocate for the Petitioner : MS.A LAHKAR, MR A AHMED(AMICUS CURIAE),MR.S RAHMAN,MS.A BEGUM,MR.A ALAM,MD.B ISLAM Advocate for the Respondent : , ,MSH M RAJBONGSHI,,MR.B P SINHA Page No.# 2/12 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 04.11.2025 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 Page No.# 3/12 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 ? Page No.# 4/12 (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 complainant had contended that the accused owed Rs.1,00,000/-to her and in discharge of the aforesaid debt the accused gave her the cheque in question. 10. The complainant examined herself in support of her case. The complainant has deposed that the accused issued the cheque in question towards the discharge of his debt of Rs.1,00,000/-. The complainant has deposed that the accused entered into an agreement with her to sell a plot of land and took Rs.2,00,000/- as advance, but the accused failed to complete the transaction as such gave this cheque of Rs.1,00,000/- towards the repayment of the advance amount. The complainant has deposed that the accused issued cheque bearing no: 061633 dated 7/4/2011 for the discharge of his aforesaid debt. The said cheque is produced and marked as exhibit 1. The complainant has identified the signature of the accused thereon which is marked as exhibit 1(1). The complainant was not cross examined by the defence regarding the alleged liability. Page No.# 5/12 The defence has not at all cross examined the complainant regarding the alleged transaction of sale of land, but, in fact, the accused had admitted in his statement recorded under section 313 CrPC that he had entered into the said land sell agreement and also took Rs.2,00,000/- and also admitted that he had issued the instant cheque, but stated that the said cheque was given by him as security. The accused has not furnished any explanation as to why he had to give security and what was the nature of the security. Considering the fact that there is no explanation regarding the nature of "security" for which the said cheque was issued, it is held that the accused had issued the cheque for the discharge of his liability. 11. In addition to the above the section 139 of the Negotiable Instruments Act, 1881 raises a statutory presumption that the holder of the cheque, unless the contrary is proved, received the cheque for the discharge in whole or in part of any debt or liability. In the instant case at hand the accused has admitted that he had issued the cheque; as such the statutory presumption is that he had issued the said cheque for the discharge of his debt or liability.. 12. In view of the above it is held that the accused had issued the said cheque for the partial discharge of his liability of Rs.1,00,000/-.” 7. With regard to the issue as to whether the cheque issued was dishonored for insufficient funds in the account of the petitioner, herein, the learned Trial Court drew the following conclusions; “14. The complainant has deposed that the said cheque was presented to her bank for encashment, but the same Page No.# 6/12 was dishonoured because of insufficient funds in the account of the accused. The complainant has produced the cheque return memo and the same is marked as exhibit 3 which shows that the said cheque was dishonoured for insufficient funds on 6/6/2011. The PWI was not cross examined in this regard; as such it is held that the said cheque was dishonoured. 15. In addition to the above the accused has admitted in his statement recorded under section 313 CrPC that the said cheque was dishonoured due to insufficient funds in his account; as such it is held that the said cheque was dishonoured due to insufficient funds in the account of the accused. 16. DECISION: The cheque was dishonoured for insufficient funds in the account of the accused.” 8. Thereafter the learned Trial Court considered the issue as to whether the demand notice issued by the respondent, herein, was received by the petitioner, herein. On consideration of the evidences coming on record, the learned Trial Court drew the following conclusions; “17. The complainant (PWI) has deposed that he had issued the demand notice in respect of the dishonor of the said cheque through her advocate on 14/6/2011 by registered post. The complainant has produced the said notice and the same is marked as exhibit 4. The complainant has further deposed that the said notice was received by the accused. The complainant was not cross examined by the defence in this regard; hence there is nothing on record to doubt or disbelieve her. Page No.# 7/12 18. The complainant has deposed that she issued the demand notice in respect of the dishonor of the said cheque by way of registered post. The complainant has produced the postal receipt by which the said notice was sent and the same is marked as exhibit 5. The perusal of the exhibit 5 shows that the same is prepaid and addressed to the accused. The perusal of the address mentioned in the demand notice shows that the address of the accused is correctly mentioned in the said notice and the same is also correctly mentioned in the exhibit 4 as well as this complaint petition. The accused has not disputed the address. The complainant has also produced the A/D card of the registered post by which the notice was sent and the same is marked as exhibit 6. 19. The accused has admitted in his statement recorded under section 313 CrPC that he had received the demand notice and that the notice was received on his behalf by his wife. The accused has also identified the signature of his wife on the A/D card (exhibit 6). In view of the above it is held that the accused received the demand notice in respect of the dishonor of the said cheque. 20. DECISION: The demand notice was duly served upon the accused.” 9. Having drawn the said conclusions, the learned Trial Court proceeded to consider the issue as to whether the petitioner, herein, had committed an offence punishable under Section 138 of the N.I. Act. On examination of the evidences coming on record, the learned Trial Court drew the following conclusions; “21. The offence under section 138 is complete on the satisfaction of certain conditions which are that the Page No.# 8/12 cheque has to be issued on the account maintained by the accused and that the cheque has to be issued for the discharge of a debt or liability. It is further provided that the said cheque has to be deposited within six months of its issuance or within its validity and that the notice regarding the dishonor of the cheque for insufficient funds ought to be given within 30 days of the receipt of information regarding the dishonor. 22. In the instant case at hand it is already held that the cheque was issued by the accused in the account maintained by him and that the said cheque was dishonoured due to insufficient funds. The cheque was issued in the instant case on 7/4/2011 and it was presented within six months for encashment. The cheque was dishonoured on 6/6/2011 as is revealed from the cheque return memo; and the demand notice was issued by the complainant on 14/6/2011, which is within 30 days from the receipt of information of dishonor. The said notice was received by the accused on 18/6/2011. The complainant had thereafter instituted this complaint on 7/7/2011 which is within 30 days after the lapse of 15 days from the date of receipt of demand notice; hence the complaint is lodged within the period of limitation.” 23. In view of the above discussion it is held that all the ingredients of the offence under section 138 of the Negotiable Instruments Act, 1881 are satisfied in the instant case and further the complainant has satisfied all the requisites for the institution of the complaint; hence it is held that the accused has committed the offence under section 138 of the Negotiable Instruments Act, 1881. 24. DECISION: The accused has committed the offence Page No.# 9/12 under section 138 of the Negotiable Instruments Act, 1881.” 10. Having drawn the said conclusions, the learned Trial Court proceeded to convict the petitioner, herein, under Section 138 of the N.I. Act of 1881, and sentenced the petitioner to Simple Imprisonment for 6(six) months and further to pay compensation of Rs.1,40,000/- (Rupees One Lakh Forty Thousand), in default to undergo Simple Imprisonment for further 1 (one) month. 11. The learned Appellate Court on the appeal being preferred in the matter, upon appreciating the evidences coming on record had drawn the following conclusions; “11. Let me re-appreciate the material on record. In his evidence the complainant as P.W. 1 (the complainant) has reiterated the facts that the accused entered into an agreement with her to sell a plot of land and took Rs.2,00,000/- as advance, but the accused failed to complete the transaction and as such gave this cheque of Rs. 1,00,000/- towards the repayment of the advance amount in part. PW 1 has proved the said cheque as exhibit 1. During cross-examination of PW 1, accused has got the facts confirmed in place of demolishing or casting doubt. The evidence of complainant that accused has issued the cheque of Rs. 1,00,000/-towards the repayment of the advance amount remained unchallenged. Furthermore, in his statement u/s 313 Cr.P.C accused has admitted that he had entered into the said land sell agreement and also took Rs. 2,00,000/- and also admitted that he had issued the instant cheque. Though accused took the plea the said cheque was given by him as security but failed to explain as to why he had to give security of a cheque of Rs. 1,00,000/- for the admittedly taken amount of Rs. 2,00,000/-. The plea of security neither proved not reliable on the scale of preponderance of probability. …………………….. 15. In the case in hand, as discussed earlier, the accused though took the plea that he issued the cheque as security, but failed to give convincing proof to Page No.# 10/12 substantiate his plea. Defence cross-examination of PW 1 even no suggestion on this point was given to the witness for his reaction. Considering the available material on record, I hold that learned trial court has not committed any error in appreciating the evidence on record while coming to the conclusion that accused has failed to rebut the presumption of law as available to the complainant u/s 139 of N I Act. Hence, I concur with the findings of learned trial court on point No. 1. 16. So far bouncing of the cheque is concerned, no dispute is raised in appeal. The fact of dishonor of cheque for insufficient fund was also duly proved by the cheque return memo (exhibit 3) which shows that the said cheque was dishonoured for insufficient funds on 6/6/2011. Learned trial court has rightly decided this aspect. 17. So far service of demand notice, the PW 1 has proved the demand notice as exhibit 4, the postal receipt by which the said notice was sent as exhibit 5 the A/D card as exhibit 6. During cross-examination of PW 1 no challenge was made on this part of evidence and documents. Moreover, the accused has admitted in his 313 Cr.P.C statement admitted the fact of receipt of demand notice. So the ground taken in appeal memo that demand notice was not served is not based on facts. I find no perversity in the above finding of trial court. There is no dispute that even after proper service of notice, accused has not repaid the amount. 18. From the totality of the fact, I am of the considered opinion that learned trial court has not committed any illegality or irregularity in holding the accused as guilty for the offence punishable u/s 138 of N. I. Act and thus conviction of the accused is upheld and maintained.” Page No.# 11/12 12. Basing on the said conclusions, the learned Appellate Court proceeded to dismiss the appeal and thereby upheld the conviction of the petitioner, herein, by the learned Trial Court, as noticed hereinabove. The Appellate Court also imposed a cost of Rs.5000/- (Rupees Five Thousand) upon the petitioner. 13. This Court has perused the conclusions drawn in the matter both by the learned Trial Court as well as by the learned Appellate Court. On a perusal of the conclusions so drawn, in the light of the evidences coming on record, this court is of the considered view that the ingredients required to be satisfied for convicting the petitioner under Section 138 of the N.I. Act of 1881, has been fully complied with in the matter and accordingly, the conclusions drawn by the learned Trial Court as well as the by learned Appellate Court is found to have been so drawn on a due and proper appreciation of the evidences coming on record. No infirmity having been found with the said conclusions drawn, this Court is of the considered view that the conviction of the petitioner, herein, under Section 138 of N.I Act, would not mandate any interference. 14. Having drawn the said conclusion, this Court notices that the cheque issued, in question, was dishonored on 06.06.2011, and thereafter the notice was issued on 14.06.2011 and the complaint filed, thereafter. It is seen that more than 14(fourteen) years have lapsed since the date of commission of the offence by the petitioner, herein. Considering the long lapse of time emanating in the matter, this Court is of the considered view that the punishment imposed by the learned Trial Court, upheld by the learned Appellate Court, would mandate a modification. Accordingly, the sentencing of the Simple Imprisonment Page No.# 12/12 for 6(six) months as imposed by the learned Trial Court is set aside and the petitioner, herein, is directed to pay the compensation amount of Rs.1,40,000/-(Rupees One Lakh Forty Thousand) as imposed by the learned Trial Court within a period of 3(three) months from today. In the event, any default arises in payment of compensation awarded by the leaned Trial Court, the petitioner, herein, shall undergo Simple Imprisonment for a period of 3(three) months. The amount of compensation as determined by the learned Trial Court i.e. Rs.1,40,000/-(Rupees One Lakh Forty Thousand), shall be deposited by the petitioner, herein, along with the cost of Rs.5000/- (Rupees Five Thousand), imposed by the learned Appellate Court before the learned Trial Court within a period of 2(two) months from today. 15. With the above observations and directions the present Criminal Revision Petition stands disposed of. 16. Send down the records of the case to the Trial Court along with a copy of this order for information and necessary action. JUDGE Comparing Assistant