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TMI Blog2022 (9) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal petition to avoid any confusion. The respondent is the complainant before the learned trial Court and the petitioner is the accused in the complaint case. 4. In brief, the case of the respondent in the complaint was that on the request of the petitioner, the respondent had given a sum of Rs.7.00 lakh in cash by way of agreement dated 29.03.2011, on promise to repay the amount by 15th May, 2011. As a part payment, the petitioner gave a cheque bearing no. 098868 dated 16.05.2011 drawn on Indusind Bank for a sum of Rs.1.00 lakh, which was dishonoured, in respect of which a complaint case was then instituted and was then being tried in the Court of Addl. Chief Judicial Magistrate, Tinsukia ("Addl. CJM, Tinsukia" for short). On 17.07.2012, it was agreed that the previous complaint would be withdrawn on payment of the previous cheque amount as well as the balance payable amount of Rs.6.00 lakh. Thereafter, for payment of debt, the petitioner had handed over six cheques of Rs.1.00 lakh each, bearing nos. 098866, 098867, 098869, 098870, 098871, and 098872, all drawn on Indusind Bank. All the said 6 (six) cheques were deposited for collection on 17.07.2012, but as per return memo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tures of the parties were put at the specific space in the second page, which leaves no space for doubt that the signatures were put after the contents were written on the page and not prior to that. The existence of the agreement was also accepted because the petitioner was convicted for dishonour of cheque no. 098868 for Rs.1.00 lakh by the said Court by judgment and order dated 18.11.2013, which was affirmed by the learned Addl. Sessions Judge, Tinsukia by judgment dated 12.10.2015 in Crl. Appeal No. 64(4)/2013. Hence, the learned trial Court had drawn presumption under section 139 of the NI Act, and as presumption could not be rebutted by the petitioner as DW-1. The learned trial Court had held that the plea of the petitioner that he was given cheque no. 098868 to Arvind Kumar (PW-2), as the same was denied by PW-2. The learned trial Court held that the six dishonoured cheques were issued in discharge of the lawful debt as the evidence of the PWs could not be shaken on the point and the plea that the said ten cheques bearing serial nos. 098866 to 098875 were lost for which FIR was lodged on 02.06.2011, was held to be unacceptable because of three reasons, firstly, that out of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to the provisions of section 138 of the NI Act and had submitted that a case under section 138 of NI Act would stand when the cheque is dishonoured due to insufficiency of funds or when cheque amount exceeds arrangement and that both the said conditions were not satisfied. In this regard, the learned lower appellate Court had held that section 138 of the NI Act stands on the presumption against the drawer of the cheque and in this case, the petitioner had already closed the account and from that account he had issued six cheques to the respondent and therefore, it can be presumed that the petitioner had dishonest intention and therefore, it was held that there was no merit in the appeal and it was further held that the learned trial Court had rightly passed the judgment and thus, the appeal was dismissed. 10. The learned counsel for the petitioner had submitted that the six cheques was lost and in the said regard, the petitioner had not only lodged and proved the FIR, but also lodged and proved his letter to the bank regarding loss of cheque by enclosing the FIR. It was also submitted that the evidence of the petitioner as DW-1 was mechanically discarded by the learned trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad failed to consider that the cheques were not account payee cheques; (h) no documents were exhibited by the respondent-complainant; (i) the judgments were vitiated by non-consideration of the provisions of section 360 Cr.P.C. and Probation of Offenders Act, 1958; (j) the Courts had failed to appreciate that the petitioner had successfully rebutted the presumption; (k) the Court had failed to examine the bank officials and the Officer-in-Charge of Tinsukia Police Station; and (l) the petitioner craves leave to argue on any other good grounds at the time of hearing. 15. Although it has been mentioned herein before, it is reiterated at the cost of repetition that the learned appellate Court below had not discussed the entire evidence because the petitioner had agreed that the evidence available in the case has proved the offence against him. Moreover, the learned appellate Court had further recorded in the order that the only defence taken was that the case was not within the purview of section 138 of the NI Act. Thus, it is seen that in none of the twelve grounds referred to above, the petitioner has disputed the admission made before the appellate Court that the evidence availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Police station to come with the record and to depose and to prove the FIR lodged by the petitioner, and (ii) to the Bank Manager to come with the record and to depose and to prove the intimation by the petitioner about loss of cheques, when the petitioner had exhibited copies without obtaining any prior leave to exhibit secondary evidence and when no prayer was made by the petitioner to allow him to take steps for production of the records and to prove the same in accordance with law. Therefore, there is no merit in the said contention. 19. The ground nos. (e), (f) and (j) are taken up together. In connection with ground (e), the observations and finding of the learned trial Court has been narrated herein before, whereby it is seen that the learned trial Court had given its finding why the agreement (Ext.1) was admissible despite the fact that the first page did not contain any signature. On an examination of the said Ext.1, the original of which was produced by the learned counsel for the respondent, it is seen that notwithstanding that the first page of the agreement does not contain any signature, yet the signature of the parties appear in the space earmarked for signature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussion on the cases cited by the learned counsel for the petitioner. 25. Therefore, on all counts, the challenge to the judgment and order dated 16.05.2019, passed by the learned Sessions Judge, Tinsukia in Crl. Appeal No. 5(1)/2018, and (ii) the judgment dated 20.01.2018, passed by the learned Addl. Chief Judicial Magistrate, Tinsukia in N.I. Case No. 34/2012 fails and this petition stands dismissed. It may be mentioned that in this case, the petitioner has not been able to demonstrate that the impugned orders suffer from any legal or factual error, or there was an abuse of the process of the Court, or that the petitioner was convicted by relying on any inadmissible evidence. Therefore, this case does not meet any of the parameters under which a concurrent finding by both the Courts below can be interfered with. Nonetheless, the merit of the case has also been examined in the process, which was to be otherwise examined only if the petitioner had filed a revision under section 397 read with section 401 of the I.P.C. 26. Resultantly, the sentence against the petitioner to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.10,00,000/- (Rupees ten l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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