JUDGMENT : MRIDUL KUMAR KALITA, J. 1. By this common judgment, it is proposed to dispose of two criminal revision petitions, namely, Criminal Revision Petition No. 439/2019 filed by Ganesh Majumdar as well as Criminal Revision Petition No. 542/2022 filed by Sreekanta Pathak. Same is done as both the criminal revision petitions are directed against a common judgment dated 02.08.2019, passed by the Court of learned Additional Session Judge (FTC) No. 4, Kamrup (M) at Guwahati in Criminal Appeal No. 78/2017. 2. Heard Dr. N. Deka, the learned counsel for the petitioner in Criminal Revision Petition No. 439/2019 as well as counsel for respondent in Criminal Revision Petition No. 542/2022. Also heard Mr. R. Sarma, learned counsel for petitioner in Criminal Revision Petition No. 542/2022 as well as for respondent in Criminal Revision Petition No. 439/2019. 3. Shri Ganesh Majumdar, the petitioner of Criminal Revision Petition No. 439/2019 had filed a complaint case under Section 138 of the Negotiable Instrument Act before the Court of learned Chief Judicial Magistrate, Kamrup, against Shri Sreekanta Pathak for dishonor of two numbers of cheques bearing No. 504104 dated 15.11.2008 and 504112 dated 21.11.2008 for an amount of Rs.5,00,000/- (Rupees five lakh) each. The said complaint case was registered C as C.R. Case No. 5927 /2008 and was disposed of by the Court of learned Sub- Divisional Judicial Magistrate(S) No. 2, Kamrup (M), by judgment and order dated 05.04.2017. By the aforesaid judgment, the trial court convicted the petitioner of Criminal Revision Petition No. 542/2022, namely Shri Sreekanta Pathak (herein after referred to as the accused) under Section 138 of the Negotiable Instrument Act, 1881 and sentenced him to undergo simple imprisonment for a period of eighteen months and to pay a compensation amount of Rs.18,00,000/- (Rupees Eighteen Lakhs) to the petitioner of Criminal Revision Petition No. 439/2019, namely Shri Ganesh Majumdar (hereinafter referred to as the complainant). In default of payment of compensation as directed by the trial court, it was stipulated that the accused shall undergo further simple imprisonment for four months. 4. Being aggrieved by the aforesaid judgment of the trial court, the accused Shri Sreekanta Pathak, preferred an appeal before the Court of learned Additional Sessions Judge (FTC) No. 4, Kamrup(M), Guwahati under Section 374 of the Code of Civil Procedure, 1908. The said appeal was registered as Criminal Appeal No. 78/2017. 5. 4. Being aggrieved by the aforesaid judgment of the trial court, the accused Shri Sreekanta Pathak, preferred an appeal before the Court of learned Additional Sessions Judge (FTC) No. 4, Kamrup(M), Guwahati under Section 374 of the Code of Civil Procedure, 1908. The said appeal was registered as Criminal Appeal No. 78/2017. 5. After hearing learned counsel for both sides and after going through the materials on record, the appellate court disposed of the aforesaid appeal by its judgment dated 02.08.2019, which has been impugned in both the criminal revision by the complainant as well as by the accused person. 6. By the impugned judgment, the appellate court upheld the conviction of the accused as given by the trial court, under Section 138 of the Negotiable Instrument Act, 1881. However, it modified the sentence which was imposed on the accused by the trial court. In place of the imprisonment for eighteen months, which was imposed by the trial court, the appellate court modified the sentence of imprisonment into simple imprisonment for three months as it also modified the quantum of compensation payable by the accused. It held that instead of Rs.18,00,000/- (Rupees Eighteen Lakhs), the accused shall pay a compensation of Rs.13,00,000/- (Rupees Thirteen Lakhs) to the complainant and in default of payment of compensation, shall undergo simple imprisonment for another two months. The accused, Shri Sreekanta Pathak has preferred the Criminal Revision Petition No. 542/2022, challenging the judgment of the appellate court, whereby it upheld the conviction under Section 138 of the Negotiable Instrument Act, 1881. The accused has pleaded that he ought to have been acquitted by the appellate court as well as by the trial court. 7. On the other hand, the complainant, Shri Ganesh Majumdar, has preferred the Criminal Revision Petition No. 439/2019, being aggrieved by modification of the sentence made by the appellate court in decreasing the quantum of compensation as well as period of imprisonment which was imposed on the accused by the trial court. 8. The facts relevant for consideration of both the revision petitions, in brief, are that the complainant Ganesh Majumdar had filed a complaint petition under Section 138 of the Negotiable Instrument Act before the Court of learned Sub-Divisional Judicial Magistrate No. 2, Kamrup (M), Guwahati. The said C complaint case was registered as C.R. Case No. 5927 /2008. 8. The facts relevant for consideration of both the revision petitions, in brief, are that the complainant Ganesh Majumdar had filed a complaint petition under Section 138 of the Negotiable Instrument Act before the Court of learned Sub-Divisional Judicial Magistrate No. 2, Kamrup (M), Guwahati. The said C complaint case was registered as C.R. Case No. 5927 /2008. In the complaint, it was averred by the complainant that the accused was known to the complainant for a long period of time and the accused approached the complainant for an amount of Rs.10,00,000/- (Rupees Ten Lakhs). For relieving the said liability, the accused issued two cheques of Rs.5,00,000/- (Rupees Five Lakh) each bearing No. 504104 dated 15.11.2008 and 504112 dated 21.11.2008 respectively. When the complainant deposited the said cheques for encashment in the Canara Bank, Maligaon Branch, same were dishonoured due to funds insufficient. After dishonour of both the cheques, the complainant issued demand notice dated 25.11.2008 requesting the accused to pay the cheque amount to him. However, when the same was not done, the complainant approached the court by filing the complaint case. The accused appeared before the court in the aforesaid complaint case and contested the case. On his appearance, the particulars of offence under Section 138 of Negotiable Instrument Act, 1881 were explained to him to which he pleaded not guilty and claimed to be tried. In support of his case, the complainant examined himself as PW-1 whereas the accused was examined under Section 313 of the Code of Criminal Procedure, 1973, however, he did not adduce any witness in his defence. 9. The trial court had formulated following points for determination in the judgment delivered by it on 05.04.2017 namely:- (i) Whether the accused person had issued the cheque in discharge of his debt and liability? (ii) Whether the cheque was dishonoured for account closed? (iii) Whether the complainant had made demand notice to the accused within a period of 30 days from the date when he came to know about the dishonour of cheque? (iv) Whether the accused person has committed offence under Section 138 of NIA? 10. Ultimately, by the judgment dated 05.04.2017, the trial court convicted and sentenced the accused in the manner as already described in the foregoing paragraphs. 11. As discussed herein before, the appellate court upheld the conviction of the accused under Section 138 of the Negotiable Instrument Act, 1881. 10. Ultimately, by the judgment dated 05.04.2017, the trial court convicted and sentenced the accused in the manner as already described in the foregoing paragraphs. 11. As discussed herein before, the appellate court upheld the conviction of the accused under Section 138 of the Negotiable Instrument Act, 1881. However, it decreased the tenure of sentence of imprisonment imposed on him as well as also decreased the compensation to be paid by him in the manner as already described in the foregoing paragraphs. 12. Mr. R. Sarma, the learned counsel for the accused petitioner in Criminal Revision Petition No. 542/2022 has submitted that both the trial court as well as the appellate court have erred in convicting the accused under Section 138 of Negotiable Instrument Act without taking into consideration that the complaint filed by the complainant was not supported by any affidavit or verification, therefore, it ought to have been dismissed on that ground only. 13. He further submits that the trial court as well as the appellate court also erred in convicting the accused without taking into consideration that there was no averment in the complaint filed by the complainant regarding the fact of payment of Rs.10,00,000/- (Rupees Ten Lakhs) by the complainant to the accused or anything to indicate that the accused has received the sum of Rs.10,00,000/- (Rupees Ten Lakhs) from the complainant. He further submits that both the courts have also failed to take into consideration that the complainant failed to adduce any evidence to prove the fact that the cheques in questions were issued by the accused in discharge of any legally enforceable debt. He submits that both the courts also failed to take into consideration that the complainant had failed to adduce any evidence to disclose the manner in which Rs.10,00,000/- (Rupees Ten Lakhs) was paid to the accused. He submits that the complainant has also not stated as to on which dates and what mode the money amounting to Rs.10,00,000/- (Rupees Ten Lakhs) were paid to the accused. 14. The learned counsel for the accused-petitioner also submits that the complainant also failed to adduce any evidence before the trial court to show that he had the capacity of paying Rs.10,00,000/- (Rupees Ten Lakhs) as loan to the accused. He did not adduce anything to show his income. 14. The learned counsel for the accused-petitioner also submits that the complainant also failed to adduce any evidence before the trial court to show that he had the capacity of paying Rs.10,00,000/- (Rupees Ten Lakhs) as loan to the accused. He did not adduce anything to show his income. No income tax return or any evidence was adduced to show his capability of paying Rs.10,00,000/- (Rupees Ten Lakhs). He submits that it is the duty of the complainant to relieve the burden of proving the guilt of the accused beyond reasonable doubt. However, the complainant failed to relieve the said burden. 15. The learned counsel for the accused-petitioner submits that in a case under Section 138 of the Negotiable Instrument Act, 1881, the complainant has to discharge the burden of existence of legally enforceable debt and if he fails to do so, merely because he is a holder of a cheque issued by the accused, conviction of accused will not be warranted. He also submits that both the trial court as well as appellate court also failed to take into consideration the fact that during his examination under Section 313 of the Code of Criminal Procedure, 1973, the accused has denied the truthfulness of the testimony of the witness for complainant and has denied issuing any cheque to the complainant in discharge of any legally enforceable debt. 16. He submits that such a denial amounts to rebuttal of presumption drawn under Section 118 and Section 139 of the Negotiable Instrument Act, 1881. He submits that thereafter the burden shifts to the complainant to show that cheques in question were issued in discharge of any legally enforceable debt which the complainant has failed. He, therefore, submits that the conviction of the accused-petitioner by the trial court as well as sentence imposed on him, is liable to be set aside, and the revision petition filed by the accused is liable to be allowed. In support of his submission, learned counsel for the accused-petitioner has cited following rulings:- (i) “ V.D. ThingarVs. State of Uttar Pradesh ” reported in “ AIR 1966 SC 1716 ” (ii) “ M.S. Narayana Menon @ Mani Vs. State of Kerala &Anr” reported in “ (2006) 6 SCC 39 ”. (iii) “ Krishna Janardhan Bhat Vs. Dattatraya G. Hegde ” reported in “ (2008) 4 SCC 54 (iv) " M/S Indus Airways Pvt. Ltd and ors Vs. State of Uttar Pradesh ” reported in “ AIR 1966 SC 1716 ” (ii) “ M.S. Narayana Menon @ Mani Vs. State of Kerala &Anr” reported in “ (2006) 6 SCC 39 ”. (iii) “ Krishna Janardhan Bhat Vs. Dattatraya G. Hegde ” reported in “ (2008) 4 SCC 54 (iv) " M/S Indus Airways Pvt. Ltd and ors Vs. M/S Magnum Aviation Pvt Ltd and Anr " reported in " (2014) 12 SCC 539 ". (v)“ Amulya Patowari Vs. Amarendra Choudhury” reported in “ 2013 (5) GLT 201 ” 17. On the other hand, Dr. N. Deka, the learned counsel for the complainant and petitioner in Criminal Revision Petition No. 439/2019 has submitted that the trial court as well as the appellate court has rightly convicted the accused, Sri Sreekanta Pathak, after considering the evidence on record. 18. He submits that the Criminal Revision Petition No. 439/2019 has been filed by the complainant/petitioner on being aggrieved with the quantum of sentence as well as the fact of reduction of compensation by the appellate court. Otherwise, he submits that judgment of the appellate court as regards the conviction of the accused under Section 138 of the Negotiable Instrument Act, 1881 is perfectly correct and not liable to be interfered with in exercise of its revisional power by this court. He submits that the fact of issuance of two cheques in questions by the accused has been admitted by him in his reply to the demand notice issued by the complainant to him. He also submits that the said fact has also been proved by the evidence of PW-1 which was adduced before the trial court. 19. The learned counsel for the complainant submits that once the fact of issuance of the cheques is proved by the complainant, the court has to draw and once it is proved that the said cheques were dishonored for want of sufficient funds in the account of the accused, it is obligatory on the part of the trial court to raise a presumption under Section 139 of the Negotiable Instrument Act, 1881 which the trial court has correctly done and same has been rightly approved by the appellate court. 20. 20. He submits that the trial court has correctly raised the presumption under Section 139 of the Negotiable Instrument Act, 1881 that there existed legally enforceable debt or liability against which the cheques in questions were issued by the accused person. He submits that the accused has failed to rebut the said presumption by adducing evidence against the same. He submits that bare denial during his examination, under Section 313 of the Code of Criminal Procedure, 1973, is not enough to rebut the initial presumption drawn by the court against him under Section 139 of the Negotiable Instrument Act, 1881. 21. He submits that the trial court as well as the appellate court have rightly relied upon the ruling of the Apex Court in the case of “ Rangappa Vs. Sri Mohan ” reported in “ (2010) 11 SCC 441 ” which has overruled the observation made by the Division Bench of the Apex Court in the case of “ Krishna Janardhan Bhat Vs. Dattatraya G. Hegde ” (supra). 22. The learned counsel for the complainant further submits that the trial court has correctly held in the judgment delivered by it that there is no statutory requirement of supporting the complaint by any verification or affidavit. What is required is that complainant has to be examined under Section 200 of the Code of Criminal Procedure, 1973 on oath and same was done in the instant case. 23. He also submits that the complainant has filed additional evidence on affidavit on 25.05.2016 before the trial court wherein he has categorically stated that the accused has been paid an amount of Rs.10,00,000/- (Rupees Ten Lakhs) by him in between 2004 to 2007 with a promise to return the same on demand. He submits that said deposition on affidavit could not be rebutted by the accused during the cross-examination of the PW-1. 24. The learned counsel for the complainant/petitioner submits that the complainant has been able to prove with the aid of the evidence adduced by him as PW-1 as well as with the aid of presumption drawn by the court under Section 139 as well as Section 118 of the Negotiable Instrument Act, 1881 and said presumption could not be rebutted by the accused by adducing any kind of evidence. He, therefore, submits that the conviction of the accused, Sri Sreekanta Pathak under Section 138 of the Negotiable Instrument Act, 1881 has been rightly upheld by the appellate court and same needs no interference by this court. 25. The learned counsel for the complainant, however, submits that while reducing the quantum of compensation to be paid by the accused as well as quantum of sentence imposed on him by the trial court, the appellate court had erred in holding that mainly because the transaction between the complainant Ganesh Majumdar and the accused Sreekanta Pathak was not a commercial transaction, the punishment imposed on the accused was found to be on higher side. He submits that reasoning given by the appellate court for reducing the quantum of compensation as well as of the imprisonment does not appear to be logical as the Negotiable Instrument Act, 1881 nowhere discriminate between a commercial transaction and a private transaction in case of dishonor of cheque. He, therefore, submits that the impugned judgment of the appellate court may be interfered with and modified to the extent that the sentence imposed on the accused by the trial court should be restored keeping the conviction of the accused under Section138 of the Negotiable Instrument Act, 1881 intact. 26. I have considered the submissions made by learned counsel for both sides. I have also gone through the materials available on record including the record of the trial court as well as the appellate court. I have also gone through the rulings cited by learned counsel for both sides in support of their respective submissions. 27. In the instant case, the conviction of accused Shri Sreekanta Pathak was under Section 138 of the Negotiable Instrument Act, 1881 has been upheld by the appellate court in the impugned judgment. It is a settled proposition of law that in exercise of its revisional jurisdiction, the High Court does not, in absence of perversity, upset concurrent factual findings of the trial court as well as the appellate court. It is also the settled legal proposition that if the courts below have recorded concurrent finding of facts, the question of re-appreciation of evidence by the third court does not arise unless the decision of the courts below are found to be totally perverse. It is also the settled legal proposition that if the courts below have recorded concurrent finding of facts, the question of re-appreciation of evidence by the third court does not arise unless the decision of the courts below are found to be totally perverse. In exercise of its revisional jurisdiction over a finding given by the appellate court, this court does not sit as a regular court of appeal. In such circumstances, in the event of an absence of any jurisdictional error or if there is no case of perversity, this court would not interfere in the impugned judgment of the appellate court. 28. In these revision petitions, the points to be determined, by this court are firstly as to whether the appellate court was correct in upholding the conviction of the accused Shri Sreekanta Pathak by the trial court under Section 138 of the Negotiable Instrument Act and as well as whether the appellate court was correct in modifying the sentence imposed on the accused by decreasing the quantum of compensation payable by him as well as the period of sentence imposed upon him. 29. Basically, the accused is aggrieved in Criminal Revision Petition No. 542/2022 by the fact that the trial court and appellate court have erred in arriving at the conclusion that the accused person had issued the cheques in questions in discharge of a legally enforceable debt or liability. 30. On perusal of the judgment of the trial court, it appears that the trial court has decided the point for determination formulated by it in the said judgment which relates to the question as to whether the accused had issued the cheque in discharge of a legally enforceable debt or other liability in affirmative mainly on the basis of the presumption drawn by it under Section 139 of the Negotiable Instrument Act, 1881 with the aid of the clarification given by the Apex Court in the case of “ Rangappa Vs. Sri Mohan ” (supra). In the said case, a Full Bench of the Apex Court has held that the presumption mandated by Section 139 of the Negotiable Instrument Act also include a presumption regarding the existence of a legally enforceable debt or liability. 31. Though, the learned counsel for the accused had cited the ruling of the Apex Court in the case of “ Krishna Janardhan Bhat Vs. 31. Though, the learned counsel for the accused had cited the ruling of the Apex Court in the case of “ Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (supra) whereby it was held by the Apex Court that "Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act". The aforesaid observation made by the Apex Court in the case of “ Krishna Janardhan Bhat Vs. Dattatraya G. Hegde ” (supra) was overruled by a Larger Bench of the Apex Court in the case of “ Rangappa Vs. Sri Mohan ” (supra). For the sake of convenience, the relevant portion of the said judgment is quoted herein below:- “ 26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [ (2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.” 32. The accused did not adduce any evidence to rebut the aforesaid presumption drawn by the trial court under Section 139 of the Negotiable Instrument Act, 1881. Mere denial of the said fact during his examination under Section 313 of the Code of Criminal Procedure, 1973, in the considered opinion of this court, is not sufficient to rebut the statutory presumption drawn under Section 139 of the Negotiable Instrument Act, 1881. Though, for rebutting the said presumption, the accused need not to adduce evidence of his own and he can rely on the material submitted by complainant in order to rebut such presumption, however, in the instant case, the accused has miserably failed to do so and nothing was brought on record except few objections to rebut such presumption. 33. Though, for rebutting the said presumption, the accused need not to adduce evidence of his own and he can rely on the material submitted by complainant in order to rebut such presumption, however, in the instant case, the accused has miserably failed to do so and nothing was brought on record except few objections to rebut such presumption. 33. This court is of considered opinion that mere fact that the complaint petition was not supported by any affidavit or verification is not fatal to the prosecution's case as rightly held by the trial court as the complainant had adduced evidence on affidavit as well as also submitted additional evidence on affidavit bringing on record the fact of payment of Rs.10,00,000/- (Rupees Ten Lakhs) to the accused by the complainant. 34. Since, while arriving at the conclusion as to whether the cheques in questions were issued in discharge of legally enforceable debts or other liability, the trial court as well as the appellate court relied on the law laid down by the Apex Court in the case of “ Rangappa Vs. Sri Mohan ”(supra) which is the correct law on the said proposition as discussed herein above, the decision arrived at by the trial court as well as appellate court may not be regarded as a perverse decision justifying any interference by this court in exercise of its revisional jurisdiction. 35. As regards other point for determination formulated by the trial court as well as by the appellate court, this court does not find any jurisdictional error therein or any perversity in arriving at findings on the said points by the courts below. 36. The conviction of the accused, Shri Sreekanta Pathak under Section 138 of the Negotiable Instrument Act, 1881 by the trial court and upheld by the appellate court, therefore, does not call for any interference by this court in exercise of its revisional jurisdiction. 37. As regards the question of sentence imposed on the accused, Shri Sreekanta Pathak is concerned, it appears that the trial court in its judgment dated 5th April, 2017 did not mention any specific reason for imposing the sentence in the manner as indicated by it in the judgment, apart from the fact that six years had lapsed from the date of issuance of cheques. Whereas, the appellate court, while decreasing the quantum of compensation as well as sentence to be undergone by the accused, found the sentence as well as compensation on a higher side as well as it also considered the fact that the transaction between the accused and the complainant were not in the nature of commercial transaction. 38. Though, while imposing sentence in a criminal case after finding the accused to be guilty of any offence, the proper approach for the trial court is to consider both the mitigating factors as well as the aggravating factors to arrive at a just finding regarding the question of sentence to be imposed. However, in the instant case, it appears that both the courts have exercised their discretion in this regard without discussing in detail such mitigating or aggravating factors. 39. This court is of the opinion that some amount of discretion is also involved while awarding punishment after finding the accused guilty of offence with which he was charged with. This court may have a different notion about the quantum of compensation to be paid by the accused on his conviction as well as quantum of sentence imposed on him, however, in exercise of its revisional jurisdiction, it may not be proper to substitute its own discretion with the discretion of the appellate court. Though, the reasons stated by the appellate court for decreasing the quantum of compensation as well as sentence imposed is very brief, however, same cannot be out rightly discarded. 40. Hence, this court does not find it appropriate or necessary under the facts and circumstances of this case to interfere with the quantum of punishment as well as compensation payable by the accused as modified by the appellate court. 41. In view of the discussions made in the foregoing paragraphs and reasons stated therein, this court finds both the revision petitions devoid of any merit and accordingly both the revision petitions are dismissed. 42. Send back the records of the trial court to the trial court along with a copy of this judgment. Also send back the records of appellate court. 43. The accused Sri Sreekanta Pathak is directed to surrender before the trial court within a period of one month from the date of this judgment to serve out the sentence imposed on him by the trial court as modified by the appellate court. 44. Also send back the records of appellate court. 43. The accused Sri Sreekanta Pathak is directed to surrender before the trial court within a period of one month from the date of this judgment to serve out the sentence imposed on him by the trial court as modified by the appellate court. 44. These revision petitions are accordingly disposed of.