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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

GAHC010129182017

2026:GAU-AS:2233

THE GAUHATI HIGH COU RT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

(PRINCIPAL SEAT)

CRL.REV.P. NO. 159/2017

Sri Nirmal Dutta,

Son of Late Manindra Ch. Dutta,

Resident of R. K. Road, P.S.- Nagaon,

District – Nagaon, Assam.

……...Petitioner

-Versus-

1. The State of Assam.

2. Sri Babul Ch. Dutta,

Son of Late Suresh Ch. Dutta,

Resident of Fouzdaripatty,

P.S. – Nagaon,

District – Nagaon, Assam.

……...Respondents

WITH

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

CRL.REV.P. NO. 445/2017

Sri Babul Ch. Dutta,

Son of Late Suresh Ch. Dutta,

Resident of Founzdaripattay,Borokananda Road

P.S. – Nagaon, Sadar,

District – Nagaon, Assam.

……...Petitioner

-Versus-

1. The State of Assam.

2. Sri Nirmal Dutta,

Son of Late Manindra Ch. Dutta,

Proprietor of Tumpa Dresses, Moon Market, Civil

Road, PO-Nagaon, PS-Nagaon Sadar, Pin-782001,

District- Nagaon, Assam.

……...Respondents

:: BEFORE ::

HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA

1.

For the petitioner in Crl. Rev. P.

No. 159/2017

: Mr. D. Bora, Advocate

2.

For the petitioner in Crl. Rev. P.

No. 445/2017

: Mr. S. Nawaz, Advocate

3.

For the respondents in Crl. Rev.

P. No. 159/2017

: Mr. S. Nawaz, Advocate

4.

For the respondents in Crl. Rev.

P. No. 445/2017

: Mr. D. Bora, Advocate

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

Date of Hearing :04.09.2025

Date of Judgment :16.02.2026

JUDGMENT & ORDER (CAV)

1. Heard Mr. D. Bora, learned counsel for the petitioner in

Criminal Revision Petition No. 159/2017 and learned

counsel for the respondent in Criminal Revision Petition No.

445/2017. Also heard Mr. S. Nawaz, learned counsel for

the respondents in Criminal Revision Petition No. 159/2017

and learned counsel for the petitioner in Criminal Revision

Petition No. 445/2017.

2. Since both these revision petitions have arisen out of the

original judgment and order dated 14.12.2015 passed by

the learned Trial Court, i.e., the Court of the learned Chief

Judicial Magistrate, Nagaon, in C.R. Case No. 4047/2011,

against which both the complainant as well as the accused

have preferred appeals, hence, it is proposed to dispose of

both the above-mentioned criminal revision petitions by

this common judgment.

3. Criminal Revision Petition No. 159/2017 has been filed by

the petitioner, Sri Nirmal Dutta, impugning the judgment

and order dated 11.04.2017 passed by the learned

Sessions Judge, Nagaon, in Criminal Appeal No. 2/2016,

whereby the judgment and order, dated 14.12.2015,

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

passed by the learned Chief Judicial Magistrate, Nagaon, in

C.R. Case No. 4047/2011, by which the petitioner

(accused) was convicted under Section 138 of the

Negotiable Instruments Act, 1881, and was sentenced to

undergo simple imprisonment for one year and to pay

compensation of Rs. 6,50,000/- to the respondent No. 2,

Sri Babul Ch. Dutta (complainant) was affirmed.

4. Whereas, Criminal Revision Petition No. 445/2017 was filed

by the petitioner, Sri Babul Ch. Dutta (complainant), under

Sections 397 and 401 of the Code of Criminal Procedure,

1973, seeking enhancement of the sentence imposed upon

the accused as well as the compensation awarded to the

complainant by the learned Chief Judicial Magistrate,

Nagaon, by the judgment and order dated 14.12.2015,

passed in C.R. Case No. 4047/2011, which was affirmed by

the learned Sessions Judge, Nagaon, in Criminal Appeal

No. 3/2016 by judgment and order dated 11.04.2017.

5. The facts relevant for consideration of the above-

mentioned criminal revision petitions, in brief, are that the

petitioner in Criminal Revision Petition No. 445/2017,

namely Sri Babul Ch. Dutta, had filed a complaint under

Section 138 of the Negotiable Instruments Act, 1881

against the respondent No. 2 (accused), Sri Nirmal Dutta.

It was stated in the complaint, inter alia, that in the month

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

of March, 2011, the accused approached the complainant

seeking a loan of Rs. 5,00,000/- due to urgent financial

necessity. Accordingly, the accused borrowed the said

amount from the complainant after executing a hand note,

promising to repay the same on or before 17.05.2011. It

was further stated in the complaint that the accused again

borrowed an additional sum of Rs. 1,00,000/- and, in

discharge of the said liability, issued a cheque bearing No.

138910 dated 17.04.2011. Upon presentation of the said

cheque for encashment, the same was dishonoured;

however, on the request of the complainant, the accused

subsequently paid the cheque amount of Rs. 1,00,000/- to

the complainant, and the dishonoured cheque was taken

back by the accused.

6. Thereafter, after about two months, the complainant, Sri

Babul Ch. Dutta, demanded repayment of the sum of Rs.

5,00,000/- which had been borrowed by the accused, Sri

Nirmal Dutta. However, the accused refused to return the

said amount. Consequently, the complainant, Sri Babul Ch.

Dutta, lodged a First Information Report (FIR) against the

accused, Sri Nirmal Dutta, at Nagaon Police Station.

7. On the basis of the said FIR, Nagaon Police Station Case

No. 1092/2011 was registered under Sections 406 and 420

of the Indian Penal Code. Subsequently, the matter was

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

amicably settled out of court, and the accused, Sri Nirmal

Dutta, in discharge of his liability, issued a cheque bearing

No. 138912 dated 11.09.2011, drawn on Indian Overseas

Bank, Nagaon, in favour of the complainant, Sri Babul Ch.

Dutta, for an amount of Rs. 5,00,000/-.

8. Upon receipt of the aforesaid cheque, the complainant, Sri

Babul Ch. Dutta, presented the same for encashment

through his banker, Assam Gramin Vikash Bank,

Khagarijan, Nagaon, where he maintained his account.

However, the cheque was dishonoured on 13.09.2011 with

the endorsement “Exceeds arrangement /Insufficient

funds.” During trial, the complainant examined three

witnesses, including himself. Although the accused, Sri

Nirmal Dutta, pleaded innocence during his examination

under Section 313 of the Code of Criminal Procedure,

1973, he declined to adduce any evidence in his defence.

Ultimately, by Judgment and Order dated 14.12.2015, the

learned Chief Judicial Magistrate, Nagaon, convicted and

sentenced the accused, Sri Nirmal Dutta, in the manner

described hereinbefore in the paragraph No. 3 of this

judgment.

9. Being aggrieved by the judgment of the Trial Court, the

accused, Sri Nirmal Dutta, preferred an appeal before the

Court of the learned Sessions Judge, Nagaon, which was

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registered as Criminal Appeal No. 2/2016. However, by

judgment and order dated 11.04.2017, the said appeal was

dismissed and the judgment of the trial court was affirmed.

The complainant, Sri Babul Ch. Dutta, also preferred an

appeal challenging the judgment and order dated

14.12.2015 passed by the Court of the learned Chief

Judicial Magistrate, Nagaon, in C.R. Case No. 4047/2011,

on the ground of inadequacy of the sentence imposed and

the compensation awarded by the trial court. The said

appeal was registered as Criminal Appeal No. 3/2016.

However, by two separate judgments & orders, both dated

11.04.2017, the learned Sessions Judge, Nagaon,

dismissed both the aforesaid appeals.

10. Mr. D. Bora, learned counsel for the petitioner in Criminal

Revision Petition No. 159/2017, has submitted that

although several grounds have been taken in the revision

petition seeking interference with the judgment of the first

appellate court, however, he confined his submissions to

with regard to the grounds nos. 3, 6, and 7 of the criminal

revision petitions.

11. The learned counsel for the petitioner in Criminal Revision

Petition No. 159/2017 has submitted that both the trial

court as well as the first appellate court erred in not

considering the evidence of DW-1, which, according to

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

him, establishes that the present petitioner had borrowed

only a sum of Rs. 1,00,000/- and not Rs. 5,00,000/- as

contended by the complainant in the complaint petition. It

is further submitted that the petitioner/accused had issued

only four security cheques in total, and that the cheque

alleged to have been dishonoured is one of such cheques

issued by the accused in favour of the complainant.

12. The learned counsel for the petitioner, in Criminal Revision

Petition No. 159/2017, further submits that the trial court

also erred in not considering the fact that the complainant

failed to produce any documentary evidence to establish

that he was financially capable of advancing a loan of Rs.

5,00,000/- to the accused. He submits that, in the absence

of any evidence regarding the complainant’s capacity to

lend such a substantial amount, the trial court ought to

have extended the benefit of doubt to the petitioner.

13. The learned counsel for the petitioner in Criminal Revision

Petition No. 159/2017 has further submitted that both the

trial court as well as the first appellate court erred in not

appreciating the fact that the complainant failed to

examine the scribe of the hand note, which was allegedly

executed by the accused. He submits that, in the absence

of examination of the author of the said document, which

was exhibited as Exhibit-1 (hand note), the same ought

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

not to have been relied upon by the trial court as well as

the first appellate court. He, therefore, contends that, on

this ground also, the judgment and order dated

11.04.2017 passed by the learned Sessions Judge,

Nagaon, in Criminal Appeal No. 2/2016 is liable to be set

aside.

14. On the other hand, Mr. S. Nawaz, learned counsel for the

respondent No. 2 in Criminal Revision Petition No.

159/2017 as well as the petitioner in Criminal Revision

Petition No. 445/2017, has submitted that although the

accused, Sri Nirmal Dutta, has preferred Criminal Revision

Petition No. 159/2017 challenging the concurrent findings

of guilt recorded by the trial court and affirmed by the first

appellate court, he has failed to demonstrate any

perversity, illegality, or jurisdictional error committed by

either of the said courts. Learned counsel submits that the

accused is, in effect, seeking re-appreciation of evidence,

which is impermissible in the exercise of revisional

jurisdiction by this Court. In support of his submissions,

learned counsel has relied upon the judgment of the

Supreme Court in the case of “Bir Singh vs. Mukesh

Kumar”, reported in (2019) 4 SCC 197, as well as the

decision in “Manju Ram Kalita vs. State of Assam”, reported

in (2009) 13 SCC 330.

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15. He further submits that neither the trial court nor the first

appellate court has committed any perversity that would

justify interference by this court in the exercise of its

revisional jurisdiction. Learned counsel submits that the

petitioner has, prima facie, failed to establish any case of

perversity on the part of the trial court or the first

appellate court warranting any interference. He also

submits that the fact that the Cheque No. 138912 dated

11.09.2011 (Exhibit-3) belongs to the accused Sri. Nirmal

Dutta and that it bears his signature has been admitted by

him in his deposition, during cross-examination, as DW-1,

before the trial court.

16. It is further submitted that Exhibit-7 (the dishonour memo)

also establishes that Cheque No. 138912 dated 11.09.2011

(Exhibit-3) was dishonoured on the ground of “exceeding

arrangements” (insufficient funds). Learned counsel

submits that Section 146 of the Negotiable Instruments

Act, 1881 clearly lays down that the court shall presume

the fact of dishonour of cheque on production of bank’s

slip having thereon the official mark denoting that the

cheque has been dishonoured and that such a presumption

can only be rebutted by the accused through evidence. He

further submits that in the instant case, the fact that the

cheque was dishonoured due to “exceeding arrangements”

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

was confirmed by the testimony of PW-2, a bank official.

However, the said evidence could not be rebutted by the

accused.

17. Learned counsel for the complainant has also submitted

that even if assuming that the cheque No. 138912 dated

11.09.2011 (Exhibit 3) was issued by the accused Nirmal

Dutta as a security cheque, the accused cannot escape his

liability under Section 138 of NI Act, 1881, unless he is

able to prove that it was not drawn for discharge of any

debt or other liability, which the accused has failed to

prove. In support of his submission, the learned counsel

for the appellant has cited a ruling of the Apex Court in the

case of “ICDS Ltd. Vs. Bina Shabeer & Anr.” reported in

(2002) 6 SCC 426.

18. The learned counsel for the respondent/complainant has

also submitted that the petitioner/accused has also failed

to prove that the Exhibit-3 cheque was blank when it was

issued. Though the petitioner had prayed for forensic

examination of the Exhibit-3, which was allowed by the

trial court, however, later on he filed another application

before the trial court declining such examination and as

such learned counsel for the complainant submits that an

adverse inference may be drawn against the

petitioner/accused.

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

19. Learned counsel for the complainant further submits that

Section 20, 87 and 139 of the Negotiable Instrument Act,

1881 makes it amply clear that a person who signs a

cheque and makes it over to the payee remains liable

unless he adduces evidence to rebut the presumption that

the cheque has been issued for payment of a debt or in

discharge of a liability. He submits that it is in material that

the cheque may have been filled in by any person other

than the drawer, if the cheque is duly signed by the

drawer. In support of his submission, the learned counsel

for the complainant has cited following rulings –

a) “Bir Singh Vs. Mukesh Kumar” reported in (2019)

4 SCC 197.

b) “M/s Kalamani Tex &Anr. Vs. P. Balasubramanyan”

reported in (2021) 5 SCC 238.

20. Learned counsel for the complainant has further submitted

that as mandated under Section 139 of the Negotiable

Instrument Act, 1881, once the issuance of cheque is

proved, there is a presumption of law that the cheque was

issued in discharge of a legally enforceable debt or liability.

He submits that the petitioner has been unable to rebut

the said presumption.

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

21. The learned counsel for the complainant has further

submitted that, even otherwise, the complainant has

proved the promissory note (Exhibit-1) executed by the

accused wherein, he admitted borrowing a sum of Rs.

5,00,000/- from the complainant with a promise to return

the same on 17.05.2011. He submits that under Section

118 of the Negotiable Instrument Act, 1881, which is also

applicable to a promissory note, the consideration and the

endorsement made therein, shall be presumed to be true.

He submits that the accused, during his cross-examination

also admitted his signature on Exhibit-1. He submits that

the accused has failed to rebut the presumption under

Section 118 of the Negotiable Instrument Act, 1881, which

is in favour of the complainant/respondent.

22. The learned counsel for the respondent/accused has also

submitted that though in his revision petition the

petitioner/accused has raised the question of financial

incapacity of the respondent/complainant to lend an

amount of Rs. 5,00,000/-, however, such a plea was never

raised by him before the trial court. Neither the accused

had adduced any evidence during trial to show the

financial incapability of the respondent/complainant to lend

an amount of Rs. 5,00,000/-. He submits that since the

question of financial incapacity of the complainant was

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

never raised by the accused during the trial, the necessity

of proving the said fact by the complainant did not arise.

In support of his submission, he has cited the ruling of the

Apex Court in the case of “M/s Kalamani Tex & Anr. Vs. P.

Balasubramanian” (supra).

23. The learned counsel for the petitioner in Criminal Revision

Petition No. 445/2017 has submitted that while assessing

the compensation amount to be paid by the accused to the

complainant, the trial court took into consideration the fact

as to the interest which the complainant would have got,

had he fix deposited the cheque amount of Rs. 5,00,000/-

in a bank he would have received an interest @ of 9% to

9.25% on the principal amount. He submits that almost

more than 10 years have been passed since the delivery of

judgment by the trial court, hence, since the complainant

had to wait for more than 14 years of the cheque amount

becoming due to him, the ends of justice would be served

only if the compensation amount is enhanced to double

the cheque amount. He therefore, prays for dismissing the

Criminal Revision Petition No. 159/2017 and allowing the

Criminal Revision Petition No. 445/2017.

24. I have considered the submissions made by the learned

counsel for both side and have gone through the materials

available on record. I have also gone through the rulings

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cited by the learned counsel for both side in support of

their respective submissions.

25. The Revision Petition No. 159/2017 has been filed by the

accused Nirmal Dutta against concurrent findings of the

trial court as well as the first appellate court, wherein, he

was found guilty of offence under Section 138 of the

Negotiable Instrument Act, 1881. The trial court after

considering the evidence adduced by the complainant

came to the finding that the cheque bearing No. 138912

(Exhibit-3) was issued by the accused against his

outstanding debt of Rs. 5,00,000/- towards the

complainant. The trial court also came to the finding that

the cheque was presented for encashment within the

period of its validity. The dishonour of cheque by the bank

for the reasons stated in Exhibit-7 (dishonour memo) was

also taken into consideration by the trial court. The trial

court also took into consideration the Exhibit-8 (demand

notice) as well as Exhibit-10 (AD card bearing the

signatures of the accused) to come to the conclusion that

the demand notice issued by the complainant was duly

served on the accused and thereafter, within the stipulated

time of 15 days as prescribed in Section 138 of the

Negotiable Instrument Act, 1881 the accused failed to

make payment of the cheque amount to the complainant.

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

The trial court also took into consideration the promissory

note (Exhibit-1) of Rs. 5,00,000/- executed by the accused

to come to the finding that the cheque (Exhibit-3) was

issued by the accused in discharge of his existing debt of

Rs. 5,00,000/-. After considering the evidence on record

the trial court came to the finding that all the essential

ingredients of Section 138 of Negotiable Instrument Act,

1881 have been proved by the complainant.

26. The contention of the accused that he borrowed Rs.

1,00,000/- from the complainant has been admitted by the

complainant, he has also admitted the receipt of the said

amount of Rs. 1,00,000/-.However, the accused has failed

to rebut the evidence of the complainant to the effect that

apart from Rs. 1,00,000/-, he also took an amount of Rs.

5,00,000/- as loan from the complainant which was also

proved by the complainant by exhibiting the promissory

note, i.e., Exhibit-1. The trial court as well as the first

appellate court also took into consideration the statutory

presumption under Section 139of the Negotiable

Instrument Act, 1881 and the fact that the accused failed

to rebut such presumption.

27. The accused never raised the plea of the incapacity of the

complainant to lend an amount of Rs. 5,00,000/- as loan to

him, neither the accused adduced any evidence in this

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Crl. Rev. No.159/2017 & Crl. Rev. No. 445/2017

regard. Under such circumstances, raising such a plea

before this court, without discharging the onus of rebutting

the statutory presumption under Section 118 and Section

139 of the Negotiable Instrument Act, 1881 before the trial

court or the first appellate court, will not be of any help to

the accused at the stage.

28. The plea of the accused that the scribe of Exhibit-1 was

not examined as a witness will also not come in aid of the

accused in as much as the statutory presumption under

Section 118 of the Negotiable Instrument Act, 1881 comes

to aid of the complainant regarding genuineness of the

said promissory note. The accused has failed to rebut the

said presumption by adducing evidence to that effect.

29. Thus, we have seen that the trial court as well as the first

appellate court have come to concurrent findings of facts

regarding existence of ingredients of offence under Section

138 of the Negotiable Instrument Act, 1881 on the basis of

evidence on record. The accused/petitioner has failed to

show that the finding arrived at by the aforesaid two

courts are totally perverse. While exercising revisional

jurisdiction, this court is not sitting as regular court of

appeal. Under such circumstances, this court, in exercise of

its revisional jurisdiction cannot embark upon the fruitless

task of determining the issues raised by the accused by

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reappreciating the evidence [See “Manju Ram Kalita Vs.

State of Assam” (supra)].

30. As regards prayer of the complainant, in Criminal Revision

Petition No. 445/2017 is concerned, though he has waited

for a long period for getting the compensation awarded by

the trial court, however, the fact remains thatthe first

appellate court in the impugned judgment, dated

11.04.2017, passed in Criminal Appeal No. 03/2016, has

held that the trial court after taking into consideration all

relevant aspects has sentenced the accused in the manner

described in the foregoing paragraphs of this judgment,

which this court agrees to. Merely because of the fact that

of long pendency of instant revision petitions, which may

be considered as circumstances which arose after the

rendering of judgments by the trial court as well as first

appellate court, same cannot be taken into consideration

for enhancing the sentence imposed on the accused. More

so, when in exercise of its revisional jurisdiction this court

is concerned only about the correctness, legality and

propriety of the impugned judgments, it cannot take into

consideration circumstances which arose subsequent to

rendering of the impugned judgments.

31. For the discussions made and reasons stated in the

foregoing paragraphs, this court does not find any ground

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to interfere in the impugned judgments passed by the first

appellate court in Criminal Appeal No. 2/2016 as well as

Criminal Appeal No. 3/2016.

32. Accordingly, the Revision Petition No. 159/2017 as well as

Revision Petition No. 445/2017 are found devoid of any

merit and accordingly dismissed.

33. The accused Nirmal Dutta is directed to appear before the

trial court within 1 month from the date of this judgment

to serve out the sentence imposed by the trial court.

34. The Revision Petition No. 159/2017 as well as Revision

Petition No. 445/2017 are accordingly disposed of.

35. The Registry shall send a copy of this judgment

immediately to the trial court.

JUDGE

Comparing Assistant