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TMI Blog2021 (3) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the learned Courts below has rightly appreciated the entire aspect of the matter and there being no any perversity in the findings, no interference is called for. Considering the aspect that the accused is an old aged person and also undertook to pay the amount, while maintaining the conviction, the sentence is converted to a fine of ₹ 9,50,000/- in default, SI for 6 months - petitioner is directed to deposit the amount before the learned trial Court within a period of 2 (two) months from today, failing which he will serve the sentence. The revision petition stands disposed of. - Hon ble Mrs. Justice Rumi Kumari Phukan For the Petitioners : Mr S C Biswas. For the Respondent : Mr M J Quadir. JUDGEMENT AND ORDER (CAV) Heard Mr S C Biswas, learned counsel for the petitioner. Also heard Mr M J Quadir, learned counsel for the private respondents. 2. The revision is preferred against the order dated 03.10.2018, passed by the learned Sessions Judge (FTC), Karimganj, in Criminal Appeal No. 43 (03)/2017, whereby the learned Court has affirmed the Judgment and Order dated 12.06.2017, passed by the learned Additional CJM, Karimganj, in CR Case No. 23/2016, wherein the petitioner wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner, to which he pleaded not guilty and claimed to be tried. 5. During the course of trial, the complainant side examined three witnesses, i.e., the complainant and two other bank officials. On closure of the evidence of the complainant side, the statement of the accused petitioner was recorded under Section 313 CrPC and he declined to adduce any evidence in his defence. 6. Learned counsel for the petitioner submits that the learned trial Court failed to appreciate the evidence available on record and erred in facts as well as in law and passed the impugned Judgment and order dated 12.06.2017, as aforesaid. Being aggrieved, the petitioner preferred an appeal under Section 374 CrPC, being Criminal Appeal No. 43 (03) of 2017, before the learned Additional Sessions Judge, Karimganj, which was dismissed vide impugned judgment and order dated 03.10.2018. On being dissatisfied and highly aggrieved with both the orders passed by the learned trial Court as well as the learned appellate Court, the petitioner has approached this Court with the present revision petition. 7. Mr S C Biswas, learned counsel for the petitioner has urged before this Court that the learned trial Court as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of complainant. 4) 2016 (3) GLT 474; Angelus Topno Vs- Srikanta Sarma; wherein also, it has been held that presumption of Section 139 of the NI Act does not give rise to presumption with regard to existence of legally enforceable debt. Mere dishonor of cheque without proving existence of a legally enforceable debt, is not enough to attract the Section 138 of the NI Act. 9. On the other hand, Mr. M J Quadir, the learned counsel for the respondent/complainant has submitted that such a challenge made by the accused petitioner is beyond the evidence on record. It is contended that in terms of the defence plea taken by the accused petitioner, that he has taken the amount of ₹ 1 lac as loan from the complainant/respondent and that it was repaid, is not at all proved by any plausible evidence. Neither the accused petitioner was able to rebut the evidence of the complainant as regards such payment, nor did he adduce any evidence in this regard. Further, in view of the admission of issuance of cheque to the complainant/respondent, his other challenge is that it was a blank cheque given as security, in absence of adequate evidence is of no consequence. Accordingly, it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been adduced and proved by the bank officials about such withdrawal by the complainant, so there cannot be any doubt as to the capacity to pay such amount by the complainant. In fact, the accused petitioner himself took inconsistent plea during the course of trial only to resist the claim of the complainant. He has specifically admitted about issuance of cheque and also taking of loan from the complainant but has given different explanation, which is self-contradictory. There is absolutely no evidence in support of such defence plea. On the other hand, the complainant has adduced oral and documentary evidence to establish that he has given the said amount as a loan to the accused/petitioner and the bank officials has duly proved about the signature of the accused person on the cheque in question and dishonor of the same. The accused petitioner has admitted in cross-examination that due to having good relation with the complainant, he maintained such financial transaction with the complainant since earlier and he used to return money on earlier occasions. Obviously, the plea of the accused that he issued no such cheque to the complainant is nothing but a false pretext only to evade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 15. In the instant case, the accused petitioner admittedly has issued the cheque with his signature voluntarily but has failed to rebut the presumption that the cheque was not issued in discharge of debt or liability by producing requisite evidence. 16. As a corollary of above findings, it can be held that the accused petitioner failed to rebut the presumption under Section 139 of the NI Act and the learned Courts below has rightly appreciated the entire aspect of the matter and there being no any perversity in the findings, no interference is called for. 17. The learned counsel for the petitioner, however, made an alternative submission that the accused petitioner is an old ailing person by this time, ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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