Dismissed¶23

Bisal Dutta v. the State of Assam and Anr.

Gauhati HC16 Mar 2025Crl.Rev.P./70/2019

Case brief

AI extract

What is this about?

Section 138 NI Act; demand notice; 15 days; 7 days notice; notice period for service not prescribed; complaint after expiry of 15 days; cognizance validity; M/s. Rahul Builders v. M/s. Arihant Fertilizers & Chemical, (2008) 2 SCC 321; cheque dishonour insufficient funds; cheque No. 908960; presumption Section 118 NI Act; Section 139 NI Act presumption; criminal revision Sections 397 401 482 CrPC; concurrent findings; no revisional interference; Gauhati High Court; Jorhat; Sivasagar; ASJM (S) Sivasagar; fine double cheque amount; fine Rs. 3,60,000.

What did the court decide?

None; the conviction and sentence under Section 138 of the N.I. Act stand upheld. ¶23

Bisal Dutta Vs the State of Assam and Anr. — Cheque Dishonour | Gauhati HC (2025)

What the court decided

AI extract

Outcome

None; the conviction and sentence under Section 138 of the N.I. Act stand upheld.

¶23

Issue for consideration

Whether the demand notice issued under Section 138 NI Act was defective because it gave 7 days instead of the mandatory 15 days for repayment, warranting setting aside of the conviction and sentence. +1 more

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Court's answer

Section 138 NI Act does not prescribe any particular period for service of the demand notice; it contemplates service of notice and payment of the cheque amount within 15 days from the date of receipt thereof. Hence a demand notice specifying 7 days for payment cannot be faulted.

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Ratio / Principle

A complaint under Section 138 can be filed only after expiry of 15 days from receipt of the demand notice if payment is not made; since the complaint here was filed after almost 35 days of the notice, i.e., admittedly after expiry of the 15-day period, the cognizance taken by the trial court cannot be faulted.

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Key takeaways

The petitioner had not raised the plea of the demand notice being defective before the Trial Court or the Appellate Court.ratio¶15
The accused's inconsistent pleas (cheque issued towards legal fees versus as security) and his inability to disprove the presumption contained under Section 118 NI Act supported upholding the conviction.ratio¶10
On reading the Trial Court judgment and the concurrent finding of the Appellate Court, the Appellate Court committed no legal infirmity or manifest error; no interference is warranted in exercise of revisional jurisdiction and the Criminal Revision Petition fails.

Detailed headnote1 paragraphs

Gauhati High Court (Kaushik Goswami, J.), 17.03.2025, Crl.Rev.P./70/2019: Criminal Revision Petition under Sections 397, 401 read with Section 482 Cr.PC by an accused convicted under Section 138 NI Act (fine Rs. 3,60,000/-, default simple imprisonment one year), whose appeal was dismissed, is dismissed. Held: Section 138 prescribes no particular period for service of the demand notice; it contemplates service of notice and payment of the cheque amount within 15 days of receipt. A notice allowing only 7 days for payment is therefore not defective, particularly where the complaint was filed after almost 35 days, i.e., after expiry of the statutory 15-day period, so the cognizance taken cannot be faulted. Reliance placed on M/s. Rahul Builders v. M/s. Arihant Fertilizers & Chemical & Anr, (2008) 2 SCC 321 (para 8). The defective-notice plea was never raised before the Trial Court or the Appellate Court. The accused's inconsistent pleas and failure to disprove the presumption under Section 118 NI Act, and the concurrence of the Trial Court and Appellate Court findings without legal infirmity or manifest error, left no scope for revisional interference.

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Page No.# 1/13

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GAHC010039532019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Rev.P./70/2019

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BISAL DUTTA

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S/O. LT. KALYAN DUTTA, R/O. NEW COLONY, RAJAMOIDAM, P.S. JORHAT, DIST. JORHAT, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND ANR. REP. BY PP, ASSAM.

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2:SMT. NABANITA BARUAH

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W/O. LT. SAURAV KUMAR BARUAH R/O. H.C.B. ROAD SIVASAGAR P.S. AND P.O. SIVASAGAR DIST. SIVASAGAR ASSAM-785640

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Advocate for the Petitioner : MR. P BOIRAGI, MS B TALUKDAR,MR. S J SARMAH,MR G G GOGOI

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Advocate for the Respondent : PP, ASSAM, MR. S C KEYAL (R2)

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Page No.# 2/13

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Date of Hearing & Judgment : 17.03.2025.

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BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

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J UDGMENT & ORDER (ORAL)

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Heard Mr. S.J. Sarmah, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned counsel for the respondent No. 2/complainant and Ms. S.H. Borah, learned Addl. Public Prosecutor for the State respondent.

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2. The instant Criminal Revision Petition is filed under Sections 397, 401 read with Section 482 of the Cr.PC for setting aside of the conviction and sentence in the Judgment & Order dated 07.12.2018 passed by the learned Court of Session Judge at Jorhat in connection with Crl.A. No. 8(1)/2017 under Section 138 of Negotiable Instruments Act, 1881, (hereinafter referred to as the “N.I. Act”), whereby the appeal by the accused petitioner have been dismissed and the order passed by the learned Addl. Chief Judicial Magistrate, Sivasagar in C.R. (NI) Case No. 240/2010 is upheld, whereunder the accused person is sentenced to pay a fine of Rs. 3,60,000/- (Rupees Three Lakhs Sixty Thousand) only and in default of payment of fine to undergo Simple Imprisonment for 1 (one) year.

¶19

3. The facts of the case is that the complainant lodged a complaint on 12.11.2018 alleging inter alia that the accused petitioner alongwith few family members had constructed a Market Complex by taking loan from HUDCO. Since the said loan could not be returned, the accused petitioner approached the complainant with a request to give him money by stating that the HUDCO is preparing to put the said Market into auction. It is further alleged that

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Page No.# 3/13

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accordingly, the complainant gave Rs.3,00,000/- (Rupees Three Lakhs) to the accused petitioner. It is further alleged that the mother of the accused petitioner also took Rs. 5,00,000/- (Rupees Five Lakhs) from the complainant for payment to HUDCO on the same day. It is further alleged that thereafter, the accused petitioner did not return the said amount of Rs. 3,00,000/- (Rupees Three Lakhs) and subsequently, it was discovered that the mortgaged property was already transferred to a third party. It is further alleged that after much persistence, the accused petitioner agreed to return Rs. 3,00,000/- (Rupees Three Lakhs) to the complainant and accordingly issued cheque bearing cheque No. 908960 dated 31.08.2010 amounting to Rs. 3,00,000/- (Rupees Three Lakhs) to the complainant. However, upon deposit of the aforesaid cheque, the same was dishonoured with the remark “Insufficient fund”. Accordingly, a demand notice on 07.10.2010 was issued and the same being not paid, Section 138 of the N.I. Act proceedings have been filed before the ASJM (S), Sivasagar. The Trial Court was pleased to find the accused petitioner guilty under Section 138 of the N.I. Act and accordingly sentenced him thereof.

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4. Against the above Judgment and order, an appeal was preferred before the Court of Sessions Judge, Sivasagar, wherein the Appellate Court was pleased to dismiss the appeal and affirmed the said Judgment of the Trial Court. Situated thus, the present Criminal Revision Petition has been filed.

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5. Mr. S.J. Sarmah, learned counsel for the petitioner submits that the order of the Appellate Court as well as the Trial Court convicting the accused petitioner and sentencing him thereof is erroneous, inasmuch as, the notice issued under Section 138 of the N.I. Act is defective, in view of the fact that time for re-payment given in the said notice was 7 (seven) days instead of the

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Page No.# 4/13

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mandatory 15 (fifteen) days.

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6. Per contra, Mr. S.C. Keyal, learned counsel for the respondent No. 2/complainant submits that since the accused petitioner after filing the complaint case has already made part payment of the dishonoured cheque amount, the plea of the accused petitioner as regards the 15 days time period not being provided in the demand notice is of no relevance. He further submits that such plea was also not taken before the Trial Court.

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7. I have given my prudent consideration to the arguments made by the learned counsels for the contending parties and have perused the materials available on record.

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8. It appears that the Trial Court framed 3 (three) issues for determination, which reads as hereunder:-

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“I. Whether the accused persons issued the cheque for the discharge of any legally enforceable debt or liability?

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II. Whether the accused persons received the demand notice issued by the complainant regarding the dishonor of the cheque?

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III. Whether the accused persons have committed the offence under section 138 of the Negotiable Instruments Act, 1881?”

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9. It appears that it has clearly come out from the oral as well as documentary evidence that the cheque in question issued by the accused petitioner was dishonoured due to insufficient fund in his account. It further appears that the accused petitioner has not denied the said fact that the cheque was dishonoured.

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Page No.# 5/13

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10. It further appears that during cross-examination, the plea of the accused petitioner appears to be not consistent, inasmuch as, at one stage while crossexamining the complainant, the accused petitioner suggested that the cheque was issued to the complainant in connection to legal fees, however in his evidence, he deposed that the cheque was issued as security measures. It further appears that the accused petitioner has not been able to disprove the presumption as contained under Section 118 of the N.I. Act.

¶35

11. It appears that the demand notice for the payment for the dishonoured cheque amount was issued to the petitioner on 07.10.2010. It further appears that upon the accused petitioner failing to make the said payment the complaint petition was filed on 12.11.2010 after about 35 days from the date of the demand notice by the petitioner.

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12. Apt to reproduce Section 138 of N.I. Act, which reads as hereunder:-

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“ 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-

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Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--

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(a) the cheque has been presented to the bank within a period of six months

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Page No.# 6/13

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from the date on which it is drawn or within the period of its validity, whichever is earlier;

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(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

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(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

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Explanation.-- For the purposes of this section, debt of other liability means a legally enforceable debt or other liability.”

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13. Reading of the aforesaid provision, it is apparent that it does not speak of a 15 days notice. However, it contemplates service of notice and payment of amount of cheque within 15 days from the date of receipt thereof. In the present case, though the demand notice specified the period of 7 days for payment, however the complaint was filed after almost 35 days of the said notice. Since there is no particular period for service of notice specified in Section 138(b), the demand notice in question cannot be faulted with. It is obvious that a complaint for an offence under Section 138 of the N.I. Act can be filed only after the expiry of 15 days from the receipt of the demand notice, if payment of the dishonoured cheque is not made. In the instant case, the complaint has been filed admittedly after the expiry of said 15 days. Therefore the cognizance taken under Section 138 of N.I. Act by the trial Court on the basis of such complaint cannot be faulted with.

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14. Reference is made to the decision of the Apex Court in the case of M/s. Rahul Builders Vs. M/s. Arihant Fertilizers & Chemical & Anr, reported in

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Page No.# 7/13

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(2008) 2 SCC 321 . Paragraph No. 8 of the aforesaid Judgment is reproduced, which reads as hereunder:-

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“8. Section 138 does not speak of a 15 days’ notice. It contemplates service of notice and payment of the amount of cheque within 15 days from the date of receipt thereof. When the statute prescribes for service of notice specifying a particular period, it should be expressly stated. In absence of any such stipulation, it is difficult to hold that 15 days’ notice was thereby contemplated. The High Court, therefore, was not correct in arriving at the aforementioned finding.”

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15. Petinent that the petitioner has not raised the issue of the demand notice being defective before the Trial Court or the Appellate Court.

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16. It further appears that the Trial Court as regards issue No. 1 has hold that the complainant has successfully established that the accused petitioner issued the cheque in question to the complainant for the charge legally enforceable debt and the cheque was dishonoured due to insufficient fund.

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17. It further appears that the Trial Court as regards issue No. 2 has observed that it is evident from the materials available on record that the complainant has issued the demand notice to the accused petitioner on 07.08.2010 and the same was received by the accused petitioner within 4 (four) days but did not make the payment within 15 (fifteen) days thereof. Accordingly, the issue No. 2 was also decided in favour of the complainant.

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18. As regards issue No. 3, apt to reproduce paragraph Nos. 25, 26, 27, 28 & 29 of the aforesaid Judgment, which reads as hereunder:-

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“25. The offence punishable under section 138 of the Negotiable Instruments Act, 1881 is completed on the satisfaction of certain conditions which are that

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Page No.# 8/13

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the cheque has to be issued on the account maintained by the accused in a bank and that the cheque has to be issued for the discharge of a debt or liability. It is further provided that the said cheque has to be deposited within six months of its issuance or within its validity and that the notice regarding the dishonour of the cheque for insufficient funds ought to be given within 30 days of the receipt of information regarding the dishonour. In the instant case at hand it is already held that the cheque (Exhibit-2) issued by the accused Bishal Dutta was dishonoured. The cheque return memo (Exhibit-3) proves that the cheque (Exhibit-2) was returned on 15/09/2010 and that the demand notice was issued by the complainant on 07/10/2010, which is within 30 days from the receipt of information of dishonour. The accused received the Advocate's demand notice on 11/10/2010 as evident from Exhibit-6 which is a delivery report issued by the postal department. The instant case was instituted on 12/11/10, which is within one month after the lapse of 15 (fifteen) days from the date of receipt of demand notice by the accused persons. Hence the complaint is lodged within the period of limitation.

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In the instant case the accused has not disputed the capability of the complainant to lend the cheque amount to him as loan. The complainant is a reputed Lawyer and therefore, I hold that the complainant is financially capable of extending the cheque amount as loan to the accused persons. Further, the complainant has duly proved that the accused Bisahl Dutta issued him the cheque (Exhibit-2) for the discharge of a debt. Further, this Court presumes u/s section 139 of the Negotiable Instruments Act, 1881 that the complainant who is the holder of a cheque received the cheque for the discharge of debt or liability on the part of the accused Bishal Dutta only. The accused has miserably failed to rebut this presumption. Furthermore, the flip flop plea on the part of the accused persons fortifies the case of the complainant and weakens the defence plea that they never borrowed any money.

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It is, therefore, concluded that all the ingredients of the offence punishable under section 138 of the Negotiable Instruments Act, 1881 are satisfied in the instant case and further the complainant has satisfied all the requisites for the institution of the instant case.

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In the light of the above discussion of evidence and upon full appraisal

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Page No.# 9/13

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of the evidence on record, coupled with my above reasons I am constrained to hold that the complainant has proved beyond reasonable doubts that the accused Bishal Dutta is guilty of committing an offence punishable under section 138 of the Negotiable Instruments Act, 1881. Hence, the accused Bishal Dutta Is convicted under section 138 of the Negotiable Instruments Act, 1881. However, the accused Bikram Dutta is acquitted of the charge u/s 138 of the Negotiable Instruments Act, 1881 and set liberty forthwith as he did not issued the disputed cheque (Exhibit-2).

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The offence committed by the convict is in the nature of an economic offence and the backbone of the nation depends on a healthy economy. Moreover the real intention behind the enactment of the legislation is to provide quick remedy to the payee or the holder of the cheque, and also to Instil a sense of confidence and assurance to the business community. If the benefit of Probation of Offenders Act is given to the convict, it will go against the spirit of the legislation. Therefore, I am not inclined to extend the benefit of the provisions of the Probation of Offenders Act, 1958 to the convict.”

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19. In the backdrop of the aforesaid, the Trial Court imposed the following sentence upon the accused petitioner, which reads as hereunder:-

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“31. I am of the opinion that imposition of fine only would meet the ends of justice. The accused Bishal Dutta (DW.1) in his testimony stated that on 24/01/13 an amount of Rs. 25,000/- (Rupees twenty five thousand); on 28/01/13 an amount of Rs. 5000/- (Rupees five thousand) and on 16/03/13 another amount of Rs. 25,000/-(Rupees twenty five thousand) were deposited in the SBI account of the complainant. The Exhibit-B, Exhibit- C and Exhibit-D show the deposition of the above mentioned amount In the SBI account of the complainant, however, it is not clear from the Exhibits if the money were deposited by the accused persons. However, it is clear from the evidence on record that the complainant has admitted that he received a total amount of Rs. 1,20,000/- (Rupees one lakh and twenty thousand) from the accused persons on various dates. Therefore, considering all aspects the convict Bishal Dutta is sentenced to pay a fine of Rs. 360,000/- (Rupees three lakhs and sixty thousand) for his conviction u/s 138 of the Negotiable Instruments Act, 1881

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Page No.# 10/13

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and in default of payment of fine amount the convict shall undergo simple imprisonment for a period of one year. The amount of fine, if realized, shall be paid in full to the complainant.”

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20. It further appears that the Appellate Court after re-appreciating the facts and evidence was pleased to dismiss the appeal by up-holding the Judgment & Order of the Trial Court.

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21. Relevant portion of the Judgment & Order of the Appellate Court is also reproduced, which reads as hereunder:-

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On re-appreciating the facts as pleaded and deposed in evidence by complainant, it appears that while the accused were facing problem to repay the loan taken from HUDCO and to save the property namely "Kalyan Market' from being sold through auction by HUDCO, they approached the complainant to sell the adjacent property at Rs. 6,00,000/- (Rupees six lacs) and as they are in urgent need of money, they took Rs. 3,00,000/- from him by executing Exbt. 1, by which title deed of the property was mortgaged with complainant as security. On knowing the fact that_the_said property has already been transferred to somebody else, when the complainant persisted for returning the money, then the cheque of Rs. 3,00,000/- (Exbt. 2) was issued to him. On deposit of the said cheque, same was dishonoured and returned with cheque return memo vide Exbt. 3. The matter was informed to the accused persons and accordingly a notice was served vide Exbt. 4. During cross examination, the complainant admitted that prior to filing of this case, he represented the accused Bikram Dutta in another case as advocate and for the matter of mortgage, he did not bring any civil suit. The complainant denied the defence suggestion that cheque was issued towards his professional fees as Advocate and also denied that cheque was issued as a security cheque. During his evidence as DW 1, accused Bishal Dutta deposed that he issued the cheque of Rs. 3,00,000/- towards professional fees of the complainant with any detail of said case and on subsequent line deposed about various repayments made by him for the cheque amount. According him to he has clear the entire amount 3,00,000/- in various installments starting from 2009 till 2013. In his cross-

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Page No.# 11/13

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examination DW 1 admitted the fact of taking loan from Hudco, receipt of notice from Hudco for failure to clear the loan which supports the pleading of the complainant. Now looking at the facts it appears that there was no denial by the accused regarding execution of Exbt.1 as proved by the complainant. Exbt. 1 which was though not registered, being a document of simple mortgage for keeping title deed in lieu of a loan can safely be used for collateral purpose as submitted by learned advocate for the appellant. Exbt. 1 shows that Rs. 3,00,000/- was taken from the complainant to transfer some property but same was transferred to somebody else and to repay the money the cheque was issued. Though DW 1 took the plea that cheque was issued with different purpose but it was proved by the complainant that the said cheque was issued in discharge of the debt created by the accused vide Exbt. 1. The defence failed to prove by adducing any convincing evidence that the cheque was issued to pay professional dues of the complainant. Apart from above, the accused side has failed to rebut the presumption as available u/s 139 N.I. Act in favour of the complainant which also supports the case of the complainant. The plea of nonexamination of the witnesses of Exbt. 1 cannot be treated as fatal as the execution of Exbt. 1 was never under challenge from the defence.

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It may be noted here that the instant complaint was filed before CJM, Sivasagar on 26.10.2010. During cross, the complainant admitted that on 15.05.2013 Rs. 20000/-, on 16.03.2013 Rs. 25000/-, on 16.11.2012 Rs. 45000/-, on 27.02.2013 Rs. 30000/- were paid to him by the accused while talking for compromise of this case. The complainant had shown his ignorance about deposit of Rs. 5000/- on 05.01.2013 and Rs. 25000/- on 29.01.2013 in his bank account by the accused. For these 2 disputed deposits, the accused as DW 1 proved 2 money receipts vide Exbt. C dated 28.01.2013 and B dated 24.01.2013. In his cross-examination DW 1 admitted that Exbt. B & C did not disclose the name of depositor. Hence cannot be acted upon. Thus it appears that during pendency of the case, accused could able to prove that he has paid/deposited Rs. 1,20,000/- in 4 installments on various dates. The complainant denied that he received the above amount towards the full and final settlement of the matter on compromise. Accused Bishal Dutta in his evidence he deposed that while engaging the complainant as his Advocate he issued the cheque for Rs. 3,00,000/- to him and paid Rs. 45,000/- in the year 2009 and Rs. 55,000/- on 17.10.2009 but failed to show as how these amounts

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Page No.# 12/13

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were connected with this case. During cross examination he admitted that he had not furnished any document showing payment of Rs. 1,00,000/- in the year 2009. He further deposed regarding payment of some amount in between 2012-2013 out of which receipt of Rs, 1,20,000/- was admitted by the complainant during his cross examination. DW 1 further admitted that in Exbt. 'B' and 'C' i.e. payment of amount of Rs. 25,000/- and Rs. 5,000/- there was no name of depositor and he did not furnish any document showing deposit of Rs. 30,000/- on 27.02.2013. The above deposits during pendency of the case reflects that having some due, the accused has paid the amount to the complainant while initiating talks for compromise. Their pleadings that the cheque was issued towards the professional fees of the complainant and it was given as security cheque appears to be self-contradictory and not reliable. Making further payment after filing of this case shows that they have admitted their liability to a great extent.

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From the totality of the case, it appears that learned trial court has rightly decided the point No. I in its judgment by holding that the cheque was issued in discharge of a legally enforceable debt created by the accused vide Exbt. 1 and in discharge of said debt, accused Bishal Dutta has issued Exbt.1 the cheque.

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The other aspect regarding bouncing of cheque and that a demand notice was issued as required under law, which was proved otherwise were also not in dispute. Thus it appears that learned trial court rightly came to the conclusion that complainant has been able to prove his case and hold the accused Bishal Dutta only as guilty who has issued the cheque vide Exbt.1 in discharge of the debt created by him.

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So far the defence argument regarding non-mentioning of list of witnesses in the complaint has no leg to stand as it is the prerogative of the complainant to prove his case either by examining himself only or by examining some other persons. In this case, no witness was examined except the complainant himself. When the complainant is sure that he can prove his case by a solitary witness, there is no need for more quantity of witnesses to prove a case.

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So far sentence is concerned, on going through the trial court judgment, it appears that out of the amount of Rs. 3,00,000/-, the accused has been able

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Page No.# 13/13

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to prove that he has paid Rs. 1,20,000/- during pendency of the case and considering the above aspect, learned trial court has sentenced the accused to pay Rs. 3,60,000/- as fine, which shows that learned trial court has applied its power to impose double the amount of the due amount under the Exbt. 1 the cheque. From Exbt. 1 it appears that the money was advanced on 21.11.2007 and cheque was issued in the year 2010 and admittedly Rs. 1,20,000/- was returned in between 2012-2013. Thus considering above facts, the imposition of fine of Rs. 3,60,000/- appears to be reasonable and no interference is called for in this appeal.”

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22. Reading of the aforesaid Judgment of the Trial Court as well as the concurrent finding of the Appellate Court, this Court is of the unhesitant view that the Appellate Court has not committed any legal infimities or manifest error and as such, no interference is warranted from this Court in exercise of revisional jurisdiction. Hence, the Criminal Revision Petition fails.

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23. Resultantly, the Criminal Revision Petition stands dismissed.

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JUDGE

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Comparing Assistant

Bisal Dutta v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Bisal Dutta v. the State of Assam and Anr.

Case brief

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What did the court decide?

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What the court decided

Issues for consideration

Cases cited

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