Gauhati High Court
Page No.# 1/15 vs The State Of Assam And Anr on 30 January, 2026
Page No.# 1/15
GAHC010022922015
2026:GAU-AS:1135
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./375/2015
BISHWAJIT TALUKDAR
S/O MANIK DAS R/O DAKHALA, NAOPARA P.O. BIJOY NAGAR DIST.
KMRUP, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
2:SANJIVANI SAMAGRA BIKAS SAMITY UPARHALI
BIJAYNAGAR
KAMRUP
ASSAM
REP. BY SRI DIPEN TALUKDAR S/O LT. SAWRAM TALUKDAR
R/O UPARHALI
BIJOYNAGAR P.O. UPARHALI DIST. KAMRUP
ASSAM
PIN - 781122
Advocate for the Petitioner : MR.S NATH, MRK BHUYAN,MR.H A AHMED
Advocate for the Respondent : PP, ASSAM, MR.S K BHATTACHARYYA(R-2),MR.B SINGHA(R-
2) BEFORE HON'BLE MR. JUSTICE SANJEEV KUMAR SHARMA Date on which judgment is reserved : 22.01.2026 Date of pronouncement of judgment : 30.01.2026 Page No.# 2/15 Whether the pronouncement is of the : No. operative part of the judgment ?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT & ORDER (CAV)
(Sanjeev Kumar Sharma, J)
Heard Mr. K Bhuyan, learned counsel for the petitioner. Also heard Mr. B Singha, learned counsel for the respondents.
2. This revision petition is directed against the appellate Judgment and Order dated 23.06.2015, in Criminal Appeal No. 07(K-A)/14, passed by the learned Sessions Judge, Kamrup, Amingaon, dismissing the appeal preferred by the revisionist against the Judgment & Order dated 08.07.2013 in CR No. 8430/07, passed by the learned Trial Court, convicting the appellant in a complaint case instituted under the provisions of the Negotiable Instruments Act (hereinafter referred as the 'N.I Act') and sentencing the accused/revisionist to undergo simple imprisonment for two months and also to pay Rs. 1,50,000/- as compensation under Section 357 CrPC.
3. The said appeal was dismissed by the aforesaid impugned order. However, the sentence was modified by substituting the sentence imposed by the the learned Trial Court with a sentence to pay a fine of Rs. 1,25,000/-, in default, Page No.# 3/15 simple imprisonment for one month.
4. The prosecution case in brief is that the respondent/complainant had given a loan of Rs. 85,000/- to the appellant and by way of return of the said loan, the appellant had issued the cheque bearing No. 014658 dated 09/08/2007 for an amount of Rs. 85,000/- drawn on the Central bank of India, Bijoynagar branch. The cheque was deposited on two occasions, the latter date being 06/11/2007, but the same was dishonoured due to insufficiency of funds. A notice was sent on 08/11/2007, and since payment was not made within the stipulated period, the complaint case was filed under Section 138 N.I Act.
5. In the trial, the respondent/complainant examined two witnesses and exhibited some documents. The defence did not adduce any evidence. After completion of trial, the appellant was convicted under Section 138 of the N.I Act and sentenced as mentioned above. Aggrieved by such conviction and sentence, the appellant has filed a criminal appeal before the appellate Court. Subsequently, the said appeal also came to be dismissed; however, the sentence was modified as stated hereinabove.
6. I have heard Mr. K Bhyuan, counsel for the petitioner, and Mr. B Singha, learned counsel for the sole respondent.
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7. The main contention put forward by learned counsel for the appellant was that this is a case where, admittedly, the revisionist had issued a blank cheque, and although he had only taken a loan of Rs.10,000/- from the complainant/society, subsequently, the cheque was filled up with an inflated amount of Rs. 85,000/- and presented to the bank for encashment.
8. In this regard, learned counsel for the revisionist has taken the Court through the cross-examination of the PW1/complainant, wherein it is stated in the second last paragraph that at the time of availing the loan, the accused had issued a blank cheque in the name of the Samiti. This has been pointed out by learned counsel to buttress the contention that it was a blank cheque, which was issued by the petitioner/revisionist.
9. The said paragraph may be reflected herein below.
"It is not a fact that the accused availed a loan of Rs. 10,000/- only from the complainant Samiti. At the time of availing the loan, accused issued a blank cheque in the name of the Samiti. I studied up to class IX. The president deposited the cheque in the bank. Ext - 3 cheque was in the official custody of the president."
It is not a fact that we inserted the Rs. 85,000/- in Ext -
Page No.# 5/15 3 cheque."
10. From a conjoint reading of the aforesaid part of the cross-examination of PW1, it transpires that the witness had denied the fact that the accused had availed a loan of Rs. 10,000/- only and also denied the suggestion that he, i.e. the complainant Society, had inserted Rs. 85,000/- in the Exhibit 3 cheque. Therefore, the sentence, "At the time of availing the loan, accused issued a blank cheque in the name of the Samiti," appears to be inconsistent to his denials indicated above and leads this Court to believe that the aforesaid sentence, within quotation marks, was also in the form of a denial, although the manner in which it was recorded may make it appear otherwise at first sight. Further, when the revisionist/accused had categorically admitted to having availed a loan of Rs. 10,000/- and also to having issued a cheque, it is not understood why he would leave the amount blank. It is hardly believable that, having taken a loan of Rs. 10,000/-, the issuer of the cheque would issue a blank cheque to the creditor.
11. Learned counsel for the petitioner has relied on a host of decisions in order to make out a case for interference in revision. Firstly, the case of C. Antony vs. K.G. Raghavan Nair, reported in (2003) 1 SCC 1 has been referred to, wherein it was reflected at paragraph 8 as follows:
Page No.# 6/15 "Then again, it is to be noticed that the trial court also took into consideration the plea of the appellant that the cheque in question was given in a blank state to Chandrappa Panicker and he being a close friend of the respondent in collusion with each other misused the said cheque to defraud the appellant. The trial court also observed that non-examination of Chandrappa Panicker has also weakened the case of the respondent especially in view of the fact that the court had noticed that the said Chandrappa Panicker was seen in the premises of the court-house at the time of trial. This is also a relevant factor on which the trial court relied upon but the High Court did not consider the effect of the said default on the part of the respondent. The third circumstance relied upon by the trial court is in regard to the difference in the ink found in the body of the cheque as well as in the signature of the appellant. It is the case of the respondent that the appellant had filled up the cheque in its entirety including its signature and had brought the cheque to the office of Vijay Kumar to be handed over to the respondent but the learned Magistrate on a perusal of the cheque, found that the ink used in the body of the cheque was different from the ink used in the signatrue on the cheque, therefore, he drew an inference that the case put forth by the respondent was doubtful, hence, could not be accepted. Even in this regard the High Court has failed to apply its mind. Having considered the findings delivered by the trial court in regard to the above 3 points, we are of the opinion that the trial court was justified in coming to the said conclusion because of the above three deficiencies pointed out by the trial court, and that the respondent's complaint ought to fail. In such a situation, we are of the opinion that the High Court Page No.# 7/15 fell in error in reappreciating the case of the respondent on a totally different perspective without coming to the conclusion that the findings given by the trial court on the above three points are either irrelevant or contrary to material on record. Therefore, following the law laid down by this Court in the abovesaid cases of Bhim Singh Rup Singh (supra) and Dharamdeo Singh (supra), we are of the opinion that the High Court was in error in reversing the finding of acquittal recorded by the trial court.
For the reasons, this appeal succeeds and the same is allowed, setting aside the impugned judgment of the High Court."
12. From a reading of the aforesaid paragraph, it is evident that the learned Trial Court in the said case had found several inconsistencies in the prosecution case, which led it to disbelieve the case of the complainant. However, nowhere in the said paragraph has it been held by the Apex Court that issuance of a blank cheque would invalidate the presumption under Section 138 of the NI Act.
13. The next decision that was relied upon on behalf of the petitioner is Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Another, reported in (2023) 1 SCC 578, wherein it was held as follows:
"16. The judgments of this Court on post-dated cheques when read with the purpose of Section 138 indicate that an offence Page No.# 8/15 under the provision arises if the cheque represents a legally enforceable debt on the date of maturity. The offence under Section 138 is tipped by the dishonour of the cheque when it is sought to be encashed. Though a post- dated cheque might be drawn to represent a legally enforceable debt at the time of its drawing, for the offence to be attracted, the cheque must represent a legally enforceable debt at the time of encashment. If there has been a material change in the circumstance such that the sum in the cheque does not represent a legally enforceable debt at the time of maturity or encashment, then the offence under Section 138 is not made out."
14. In the instant case, no material change in the circumstance, for example, in the form of part or full repayment prior to the presentation of the cheque, has been urged or pleaded. Therefore, it is not understood as to how the said decision helps the revisionist.
15. The next decision relied upon by the learned counsel for the revisionist is Rohitbhai Jivanlal Patel Vs. the State of Gujarat & Another, reported in (2019) 18 SCC 106, wherein it has been observed as follows:
"16.......
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled Page No.# 9/15 position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
16. The revisionist accused has not adduced any evidence of his own to rebut the presumption under Section 139 of the N.I Act and even on a preponderance of probabilities, nothing has been pointed out from the prosecution evidence wherefrom any doubt about the existence of a legally enforceable debt or liability arises, apart from merely suggesting to PW-1 that the revisionist/accused had taken a loan of only Rs. 10,000/- and that the figure of Rs. 85,000/- was inserted subsequently. As held in the same case, mere denial would not fulfill the requirements of rebuttal as envisaged under sections 118 and 139 of the NI Act. Therefore, this decision does not help the revisionist either.
17. In ICDs Limited Vs. Beena Shabeer, reported in 2002 6 SCC 426, the Apex Court held as follows:
Page No.# 10/15 "10. The language, however, has been rather specific as regards the intent of the legislature. The commencement of the Section stands with the words "Where any cheque". The above noted three words are of extreme significance, in particular, by reason of the user of the word "any" the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment."
18. Evidently, the aforesaid decision helps the respondent rather than the petitioner.
19. Learned counsel for the revisionist has also relied upon the decision of the Apex Court in M/S. Indus Airways Private Limited & Others Vs. M/s. Magnum Aviation Private Limited & Another, reported in 2014 12 SCC 539, wherein it was held that a breach of condition of advance payment for purchase, putting the seller to loss, may create civil liability but not criminal Page No.# 11/15 liability. It was a case where a cheque was issued by way of advance payment for the purchase order, but the purchase order was cancelled and the payment of the cheque was stopped, and the Apex Court held that while the purchaser may be liable for breach of contract when a contract provides that the purchaser has to pay in advance and a cheque towards advance payment is dishonored, it will not give rise to criminal liability under Section 138 of the Act. This, therefore, is a case which is clearly distinguishable from the present case, as no question of advance payment or cancellation of any purchase order is involved herein.
20. Countering the aforesaid arguments, learned counsel for the respondent No. 2/complainant has submitted that it is an admitted fact, as would be evident from the cross-examination of PW-1 as well as upon perusal of the instant revision petition that the petitioner/revisionist had taken a loan from the respondent society. The only point of dispute is the amount, inasmuch as the revisionist has clearly admitted to having taken a loan of Rs. 10,000/-from the respondent society. The revisionist has also admitted to having issued the said cheque and has not denied his signature thereon, and that being the case, the presumption under Section 139 of the N.I Act automatically arises.
21. In this regard, learned counsel has relied upon the decision in Page No.# 12/15 Rangappa Vs. Sri Mohan, reported in (2010) 11 SCC 441, wherein the Apex Court held that once issuance of a cheque and signature thereon are admitted, a presumption of a legally enforceable debt in favor of the holder of the cheque arises, and it is for the accused to rebut the said presumption, which the accused has failed to do, submits learned counsel.
22. Further, learned counsel for the respondent No. 2 /complainant has also placed reliance on the decision of the Apex Court in Oriental Bank of Commerce Vs. Prabodh Kumar Tewari, reported in 2022 Legal (SC) 954, wherein it was held by the Apex Court as follows:
"14. In Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 : 2019 Legal Eagle (SC) after discussing the settled line of precedent of this Court on this issue, a two-Judge Bench held:
33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, 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 had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any 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 Page No.# 13/15 138 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.
[...]
36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. (emphasis supplied) (2019) 4 SCC 197 The above view was recently reiterated by a three-Judge Bench of this Court in Kalamani Tex v. P. Balasubramanian.4
15. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. The presumption arises under Section 139."
23. It is submitted that, even if the contention of the revisionist that the Page No.# 14/15 cheque in question was blank at the time of its issuance, though signed by the revisionist, in view of the aforesaid decision of the Apex Court, that, by itself, would not render the cheque invalid.
24. I find sufficient force in the arguments advanced by learned counsel for the respondent No.2.
25. In Oriental Bank of Commerce (supra), the Apex Court has clearly held with reference to its previous decisions in Bir Singh (supra), and Kalamani Tex (supra) clearly holding that if a signed blank cheque is voluntarily presented to a payee towards some payment, the payee may fill up the amount and other particulars and the owner would still be on the accused to prove that the cheque was not in discharge of a debt or liability, by producing evidence.
26. In the instant case, not only has the revisionist/accused refrained from adducing any evidence at the trial, he also failed to set up any probable defense, even on basis on the preponderance of probabilities, in the course of cross-examination of the prosecution witnesses, other than to create some doubt as to whether the cheque was blank at the time of its issuance, which as noted above, is quite immaterial.
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27. In view of the above discussion, I do not find any merit in the instant revision, and accordingly, the same stands dismissed.
JUDGE Comparing Assistant