Page No.# 1/7 GAHC010007312014 2025:GAU-AS:14322 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./94/2014 JITEN KALITA S/O SRI NANDESWAR KALITA, R/O BARBHETA CHAPARI CHUCK, P.O. LICHUBARI, P.S JORHAT, DIST. JORHAT, ASSAM. VERSUS BHAGIRATH BALMIKI S/O SRI GUPIRAM BALMIKI, R/O KALYANPUR, P.O. GARMUR, ENGINEERING COLLEGE, JORHAT, P.S. JORHAT, DIST. JORHAT, ASSAM. Advocate for the Petitioner : MS.R SAIKIA, MS.P BARUAH,MR.K R BORA Advocate for the Respondent : , , Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : Date:16.10.2025 Heard Mr. K. R. Bora, learned counsel for the appellant. None has appeared for the Respondent. 2. The present appeal has been instituted assailing Judgment dated 27.12.2013, passed by the Additional Chief Judicial Magistrate, Jorhat, acquitting the respondent, herein, of the offence punishable under Section 138 Negotiable of Instruments Act. 3. The case of the complainant before the learned Trial Court is that on 10.01.2009, the appellant, herein, had borrowed an amount of Rs.95,000/-(Rupees ninety five thousand) from him with a promise to repay the same within 1(one) month. In discharge of such liability, the respondent had issued a cheque, bearing no.622860 dated 10.01.2009, amounting to Rs.95,000/-(Rupees ninety five thousand) drawn on Indian Bank, AFS, Jorhat, in favour of the appellant, herein. The appellant, thereafter, on the amount being not repaid by the respondent within a period of 1(one) month from the date it was so taken, had presented the cheque for payment in his account in Punjab National Bank, Lichubari, Branch. However, on 18.02.2009, the said cheque Page No.# 3/7 came to be dishonoured on account of insufficiency of fund in the account of the respondent, herein. Thereafter, the appellant send a statutory notice on 13.03.2009, by registered post with A/D, demanding repayment of the amount of Rs.95,000/-(Rupees ninety five thousand) from the respondent within 15(fifteen) from date of receipt of the enquiry. The said notice was received by the respondent, herein, 17.03.2009, the amount not being repaid, the appellant instituted a Complaint Case being C.R.No.117/2009, under Section 138 N.I. Act, before the Court of the learned Chief Judcial Magistrate, Jorhat. The learned Trial Court upon considering the evidences coming on record proceeded vide Judgment dated 27.12.2013, to dismiss the said complaint case acquitting the Respondent, herein, of offence punishable under Section 138 N.I. Act. Being aggrieved the appellant has instituted the present proceedings. 4. I have heard the learned counsel for both the parties and perused the materials available on record. 5. The materials brought on record reveals that on receiving notice of the complaint case, the respondent had entered appearance before the Trial Court and therein, he had contended that he had borrowed an amount of Page No.# 4/7 Rs.30,000/-(Rupees thirty thousand) from the appellant, herein, on account of his wife’s treatment, which he had already repaid in the month of March 2012. He had further adduced evidence while receiving the loan amount, he had handed over a blank cheque to the appellant as security. It is the categorical case of the respondent, herein, that did not owe any money to the appellant, herein, and the appellant by incorporating the amount in the cheque given as security in his own handwriting had presented the same for clearance. 6. The learned Trial Court upon considering the evidences coming on record had drawn the following conclusions ; “During his entire evidence PW1 has failed to state the manner (cash/ cheque) of handing over the amount of Rs.95,000/-(Rupees ninety five thousand) to the accused. Even though PW1 has denied that he had put the date and the amount of money in Ext.1 by himself, but is evident from a bare glance at Ext.1 that its writings (date/name of payee/ amount of cheque) does not match with that of the accused. There is however no denial of the fact that the signature appearing in the Ext.1 is that of the accused. But merely because the accused had put his signature in Ext.1 the statutory presumption u/s 139 of the Act cannot be raised when the prosecution has failed to show that the accused was liable to pay by adducing any cogent evidence. This aspect also raises a presumption that when Ext.1 was handed over to the complainant the same was a blank one which supports the defence case. Page No.# 5/7 Since the accused has denied that he had owed any money to the complainant a duty is cast upon the prosecution to prove the existence of any debt of Rs.95000/- (Rupees ninety thousand). After scanning the entire evidence on record, I find that PW1 has nowhere in his deposition adduced any oral or documentary evidence to show that the accused had owed him Rs.95000/-(Rupees ninety five thousand). And considering the fact that complainant has admitted that he had filled up some of the portions of the Ext.1, a duty is cast upon to show that he had done so as per express approval of the accused. There is no evidence on record to show that the accused had given consent to the PW1 to fill up the blank cheque. Hence, I hold that the accused does not have any liability towards the complainant and therefore the question of issuing the cheques in discharge of the liability does not arise.” 7. This Court has carefully perused the conclusions drawn by the learned Trial Court in the light of the evidences adduced by the parties before it. On a perusal of the same, this Court finds that the evidences adduced by the respondent, herein, of having repaid the loan amount and of the cheque being so given as a security, was not dislodged by the appellant, herein. It is further found that the learned Trial Court on perusal of the cheque, in question, had concluded that the said cheque was written by the appellant, herein, although the signature, therein, is of the respondent. The appellant in his evidence had failed to establish that the respondent, herein, owed debt of Rs.95,000/-(Rupees ninety Page No.# 6/7 five thousand) to him, which remained unpaid when the cheque, in question, was presented for clearance by him. 8. Accordingly, the appellant, herein, having failed to establish that a debt was owed to him by the respondent, herein, for which the cheque, in question, was so utilised, the presumption of a legally recoverable debt is not permissible to be drawn in the matter in absence of the burden of proof upon the appellant, herein, being not discharged by him towards establishing the debt, in question. 9. In view of the above discussion, this Court is of the considered view that the conclusion drawn by the learned Trial Court, that the respondent, herein, does not have any liability towards the appellant, herein, and therefore the question of issuance of the cheque towards discharge of liability would not arise, would not mandate any interference. 10. Accordingly, the acquittal of the respondent by the learned Trial Court from the offence under Section 138 N.I. Act, in the considered view of this Court is not erroneous. No infirmity has also been found in the conclusions drawn by the learned Trial Court in the matter by this Court. 11. In view of the above position, the present Criminal Appeal is held to be devoid of any merit and accordingly the Page No.# 7/7 same stands dismissed. 12. Registry to send down the records of the Case to the learned Trial Court forthwith. JUDGE Comparing Assistant