Sri Paramesh Chandra Saud vs Smt Oli Begum (Substituted In Place Of Md Abdul Ali) And Anr

GAHC010084402025

2026:GAU-AS:16262
THE GAUHATI HIGH COURT AT GUWAHATI

(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI

Crl.Rev.P. No. 148/2025

1. Sri. Paramesh Chandra Saud , S/o-Lt. Hansa
Saud, R/o-Vill-Nij Pokowa, Tatipara, P.O./P.S.-
Belsor, District-Nalbari, Assam.

……Petitioner
VERSUS

1. Smti Oli Begum (substituted in place of Md.
Abdul Ali) W/o-Late Abdul Ali, R/o- Vill-Nij
Pokowa, Tatipara, P.O./P.S.-Belsor, District-
Nalbari, Assam
.
2. The State of Assam , represented by the Public
Prosecutor, Assam.

……Respondents

For the Petitioner(s) : Mr. R.S. Chauhan, Advocate.


For the Respondent(s) : Ms. F. Begum, Advocate.
Mr. D.P. Goswami, Addl. P.P.

BEFORE
HON’BLE MR. JUSTICE ANJAN MONI KALITA
Date(s) of Hearing :- 20.08.2026

Date on which judgment is reserved :- 20.08.2026

Crl.Rev.P./148/2025
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Date of pronouncement of judgment :- 05.11.2026

Whether the pronouncement is of the
operative part of the judgment?
:- N/A

Whether the full judgment has been
pronounced?


:- Yes
JUDGMENT & ORDER (CAV)
(A.M. Kalita, J)
Heard Mr. R.S. Chauhan, learned counsel for the petitioner. Also
heard Ms. F. Begum, learned counsel for respondent No. 1; and Mr. D.
P. Goswami, learned Additional Public Prosecutor, appearing for
respondent No. 2, the State of Assam.
2. This criminal revision petition is directed against the Judgment
and Order dated 18.01.2025, passed by the learned Sessions Judge,
Nalbari, in Criminal Appeal No. 04/2024, whereby the Judgment and
Order dated 10.01.2024, passed by the learned Chief Judicial
Magistrate, Nalbari, in N.I. Case No. 179/2018, convicting the
petitioner for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881, was affirmed, subject to
modification of the sentence.
3. The case of the complainant is that the petitioner and the
original complainant, Md. Abdul Ali, were friends and that, on
01.10.2017, the complainant advanced a loan of Rs. 2,60,000/- to the
petitioner. The petitioner was stated to have issued the cheque No.
712717 dated 13.08.2018 for the said amount. The cheque, once
deposited with the bank, was returned unpaid for insufficiency of
funds. The appellate judgment records return memos dated
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24.08.2018, 06.09.2018 and 17.09.2018. Upon the petitioner’s failure
to make payment following the demand notice, a complaint under
Section 138 of the Negotiable Instruments Act, 1881 was instituted on
27.11.2018, giving rise to N.I. Case No. 179/2018 before the learned
Chief Judicial Magistrate, Nalbari.
4. During the pendency of the complaint, the original complainant
died on 20.07.2020. His wife, Smt. Oli Begum, was substituted as the
complainant and deposed as PW-1. She stated that Rs. 1,60,000/- had
been arranged from her husband’s salary income and the remaining
Rs. 1,00,000/- from a fund kept after the sale of their land and a total
of Rs. 2,60,000/- was paid to the petitioner. She further stated that
the loan was advanced in the presence of other persons and that the
petitioner issued the cheque towards repayment of the aforesaid
amount of Rs. 2,60,000/-.
5. The petitioner’s defence was that he had borrowed only Rs.
1,00,000/- and he had repaid the principal amount along with
interest. He had handed over a signed blank cheque as security, which
the original complainant later allegedly misused by filling in the
particulars. The petitioner examined himself as DW-1 and also relied
on the evidence of DW-2, Ajit Saud and DW-3, Baikuntha Baishya , in
support of the alleged repayment. It is stated that DW-2 remained
outside the complainant’s house while the petitioner went inside and
that DW-2 was informed of the repayment by the petitioner after he
came out. DW-3 claimed that he accompanied the petitioner and
witnessed the repayment. The appellate Court considered the defence
evidence and noted, amongst others, the absence of a receipt or other
contemporaneous documentary evidence of repayment.
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6. Upon consideration of the case, the learned Chief Judicial
Magistrate, Nalbari, vide judgment and order dated 10.01.2024,
convicted the petitioner under Section 138 of the Negotiable
Instruments Act, 1881 and imposed a fine of Rs. 5,20,000/-, with a
direction to undergo simple imprisonment for one year, in default of
payment. The petitioner challenged the conviction and sentence in
Criminal Appeal No. 04/2024. By judgment and order dated
18.01.2025, the learned Sessions Judge, Nalbari, upheld the
conviction but reduced the fine to Rs. 4,00,000/-, with a direction that
the amount of Rs. 52,000/- already paid be adjusted against the fine
and that the balance amount be paid within 60 days. The sentence of
simple imprisonment for one year was maintained and the petitioner
was directed to surrender before the learned Trial Court on
19.03.2025, in the event of failure to pay the amount as directed.
7. Being aggrieved by the concurrent findings of conviction, the
petitioner has approached this Court by way of the present revision
petition.
8. Mr. R.S. Chauhan, learned counsel for the petitioner, submits
that the learned Courts below failed to properly appreciate the nature
of the transaction between the parties and the defence raised by the
petitioner. It is contended that the petitioner had borrowed only Rs.
1,00,000/- and had repaid the said amount along with interest. The
cheque was allegedly issued as security and was not intended to
discharge any legally enforceable debt corresponding to the amount
claimed by the complainant. The conviction, therefore, is stated to be
unsustainable in law.
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9. Learned counsel for the petitioner further submits that the
complainant’s case regarding the advancement of the alleged loan
amount required careful scrutiny, particularly in view of the
contention that the complainant was engaged in money-lending
activities and was charging interest at the rate of 10%. It is contended
that the complainant’s financial capacity and the existence of a legally
enforceable liability were not adequately examined by the Courts
below. The petitioner also challenges the application of the statutory
presumptions under Sections 118 and 139 of the Negotiable
Instruments Act, 1881 contending that the defence evidence was
sufficient to rebut such presumptions.
10. Learned counsel for the petitioner also raises a grievance
concerning the examination of the petitioner under Section 313 of the
Code of Criminal Procedure, 1973 and submits that the circumstances
appearing against him were not properly put to him, thereby causing
prejudice to his defence. It is further contended that the sentence
imposed is excessive in the facts and circumstances of the case. On
these grounds, learned counsel prays for setting aside the impugned
judgment and order.
11. Ms. F. Begum, learned counsel for respondent No. 1, opposes
the revision petition and submits that the Courts below have duly
considered the case of the complainant as well as the defence of the
petitioner. The cheque was issued towards a liability arising out of the
loan transaction and the petitioner’s signature on the cheque
attracted the statutory presumptions under Sections 118 and 139 of
the Negotiable Instruments Act, 1881. The plea that the amount had
already been repaid was not substantiated by reliable evidence. The
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findings recorded by the Courts below are, therefore, stated to be
based on proper appreciation of the material considered by them and
do not call for interference in revisional jurisdiction.
12. I have considered the submissions advanced on behalf of the
parties and examined the impugned judgment and order dated
10.01.2024 passed by the learned Chief Judicial Magistrate, Nalbari,
the appellate judgment and order dated 18.01.2025 passed by the
learned Sessions Judge, Nalbari and the grounds raised in the revision
petition.
13. At the outset, it is necessary to bear in mind that the
jurisdiction of this Court in a criminal revision is supervisory and is
intended to ensure the legality, correctness and propriety of the
findings and orders under challenge. Revisional jurisdiction is not
ordinarily exercised as a second appellate jurisdiction for a fresh
appreciation of the entire evidence merely because another view may
be possible. Interference is warranted where the impugned decision
discloses a material illegality, a manifest error of law, a material
irregularity or a finding that cannot reasonably be sustained on the
basis of the material considered by the Courts below. In the case of
State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand,
reported in (2004) 7 SCC 659 , held that the High Court, in exercise of
its revisional jurisdiction, cannot embark upon an in-depth roving re-
examination of the oral and other evidence and come to a conclusion
contrary to the consistent one reached by two courts below. Similarly,
in the case of State of Kerela Vs. Puttumana Illath Jathavedan
Namboodiri , reported in (1999) 2 SCC 452 , observed as follows:
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"5. .....In its revisional jurisdiction, the High
Court can call for and examine the record of any
proceedings for the purpose of satisfying itself as to
the correctness, legality or propriety of any finding,
sentence or order. In other words, the jurisdiction is
one of supervisory jurisdiction exercised by the High
Court for correcting miscarriage of justice. But the
said revisional power cannot be equated with the power
of an appellate court nor can it be treated even as a
second appellate jurisdiction. Ordinarily, therefore,
it would not be appropriate for the High Court to
reappreciate the evidence and come to its own
conclusion on the same when the evidence has already
been appreciated by the Magistrate as well as the
Sessions Judge in appeal, unless any glaring feature
is brought to the notice of the High Court which would
otherwise tantamount to gross miscarriage of justice.
On scrutinizing the impugned judgment of the High
Court from the aforesaid standpoint, we have no
hesitation to come to the conclusion that the High
Court exceeded its jurisdiction in interfering with
the conviction of the Respondent by reappreciating the
oral evidence. ...."
14. In the present case, the conviction of the petitioner arises out of
proceedings under Section 138 of the Negotiable Instruments Act,
1881. The object of the provision is to preserve the credibility of
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negotiable instruments and to ensure that cheques issued towards
legally enforceable liabilities are honoured. At the same time, the
existence of a legally enforceable debt or liability remains an essential
requirement for attracting the penal consequences under the
provision. The statutory presumptions under Sections 118 and 139 of
the Act operate in the manner prescribed by law, subject to the
accused’s right to rebut them by raising a probable defence.
15. Section 138 of the Negotiable Instruments Act, 1881, applies
where a cheque drawn for discharge, in whole or in part, of a legally
enforceable debt or other liability is returned unpaid for a reason
covered by the provision and the statutory requirements concerning
demand and non-payment are satisfied. Sections 118 and 139 provide
rebuttable presumptions, including the presumption of consideration
and the presumption that the holder received the cheque in
discharge, in whole or in part, of a debt or other liability. Once the
foundational facts for invoking the presumptions are established, the
drawer may rebut them by raising a probable defence on the standard
of preponderance of probabilities.
16. In Kalamani Tex vs. P. Balasubramanian , (2021) 5 SCC 283 ,
the Hon’ble Supreme Court explained that once the signature on a
cheque is admitted or established, the presumptions under Sections
118 and 139 of the Negotiable Instruments Act, 1881, operate in
favour of the holder of the cheque, subject to the applicable
foundational requirements. The accused may rebut these
presumptions by raising a probable defence on the standard of
preponderance of probabilities. In the present case, the petitioner
contends that he had borrowed only Rs. 1,00,000/-, had repaid the
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amount along with interest and had issued the cheque as security.
However, the impugned appellate judgment records that the defence
of repayment was not found sufficient to rebut the statutory
presumptions.
17. The legal position concerning cheques issued as security was
considered by the Hon’ble Supreme Court in Sripati Singh (since
deceased) through his son Gaurav Singh vs. The State of
Jharkhand & Anr., AIR 2021 SC 5732 . The Hon’ble Supreme Court
held that a cheque issued as security may attract Section 138 of the
Negotiable Instruments Act, 1881, where the underlying liability
becomes due and remains unpaid. Thus, the mere issuance of a
security cheque does not, by itself, exclude the applicability of the said
provision. In the present case, the petitioner’s plea that the cheque
was issued as security must be considered along with his contention
that the loan amount had already been repaid. As reflected in the
impugned judgments, the defence of repayment was considered but
was not found sufficient to rebut the statutory presumptions.
18. The principal defence of the petitioner is that the actual loan
was only Rs. 1,00,000/-, that the said amount was repaid along with
interest and that the cheque was not issued towards any subsisting
liability. The impugned appellate judgment records consideration of
this defence, including the evidence of the defence witnesses. In
particular, the appellate court noted that DW-2 had not personally
witnessed the alleged repayment. The absence of a receipt or other
contemporaneous documentary evidence was also considered while
assessing the plea of repayment. These aspects were relevant in
determining whether the petitioner had raised a probable defence
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sufficient to rebut the statutory presumptions. It is also seen that DW-
3 had stated that the money had been repaid by the petitioner but as
stated above, no evidence or document has been placed in defence.
Further, the petitioner did not reply to the statutory notice received
by him from the complainant. That also provides a negative inference
about any such evidence of payment. It certainly gives rise to an
inference that the complainant’s version carries merit.
19. The petitioner has also questioned the complainant’s capacity
to advance the amount allegedly lent and has raised the contention
that the complainant was engaged in money-lending activities. Such
contentions may be relevant to the assessment of the existence of a
legally enforceable liability, depending on the facts and the applicable
law. However, the mere assertion that the complainant was charging
interest or was engaged in money-lending does not, without more,
automatically establish that the transaction was unlawful or that no
enforceable liability existed. The question must be examined on the
basis of the material available and the findings recorded by the Courts
below.
20. The judgments under challenge reflect that the complainant’s
case regarding the advancement of the loan and the petitioner’s
defence of repayment was considered by the Courts below. The
learned appellate Court, after examining the grounds raised in appeal,
upheld the finding of conviction while modifying the fine imposed by
the learned Trial Court. In the exercise of revisional jurisdiction, this
Court is required to examine the legality, correctness and propriety of
the findings and orders under challenge and to determine whether
they suffer from any manifest error of law, material irregularity or
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perversity. The revisional jurisdiction, however, does not ordinarily
warrant a fresh appreciation of the evidence merely to substitute a
different view for that taken by the Courts below. Accordingly, the
question for consideration is whether the findings recorded in the
impugned judgments disclose any such infirmity as would justify
interference by this Court.
21. The petitioner’s challenge to the statutory presumptions must
also be considered in the context of the burden of proof applicable to
proceedings under Section 138 of the Act. The presumptions under
Sections 118 and 139 do not make the accused’s right of defence
illusory; rather, they prescribe the evidentiary burden that arises
once the relevant foundational facts are established. The accused may
rebut the presumptions by relying upon the complainant’s evidence,
the circumstances of the transaction or other material available in the
case. Nevertheless, a bare denial of the liability or an unsupported
assertion of repayment would not, by itself, be sufficient to displace
the presumptions.
22. In the present case, the impugned appellate judgment records
that the petitioner’s plea that the amount had been repaid was
considered but was not accepted as sufficient to rebut the statutory
presumptions. The appellate Court also took note of the limitation in
the evidence of DW-2, who had not personally witnessed the alleged
repayment. The court also did not find the evidence of DW-3
trustworthy and relevant, who is also a relative of the petitioner and
not an independent witness. The petitioner’s contention that the
cheque was issued as security does not, in itself, establish that no
liability subsisted on the date of its presentation. On the material
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reflected in the impugned judgments, no sufficient ground has been
demonstrated to hold that the Courts below applied the statutory
presumptions in a manner contrary to the principles laid down by the
Hon’ble Supreme Court.
23. The petitioner has contended that he was deprived of a fair trial
owing to an alleged defect in the examination conducted under
Section 313 of the Code of Criminal Procedure, 1973. The impugned
appellate judgment records the petitioner’s explanation that he had
borrowed Rs. 1,00,000/-, repaid the loan and issued the cheque as
security, which was allegedly misused by the original complainant.
The appellate Court also considered the petitioner’s statement while
examining the statutory presumptions under Section 139 of the
Negotiable Instruments Act, 1881.
24. It is also relevant that the appellate court below did not leave
the sentence imposed by the Trial Court untouched. While affirming
the conviction, it reduced the fine from Rs. 5,20,000/- to Rs.
4,00,000/- and directed adjustment of the amount of Rs. 52,000/-
already paid. The balance was directed to be paid within the period
stipulated by the appellate court, with the default sentence
maintained. The petitioner has not demonstrated, on the basis of the
material available for consideration in this revision, that the modified
sentence suffers from any material illegality warranting further
interference by this Court.
25. As discussed above, the revisional jurisdiction of this Court
cannot be invoked merely to substitute a different assessment of the
defence for the assessment made by the Courts below. The impugned
appellate judgment records consideration of the plea that the loan
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amount was smaller than alleged, that repayment had taken place and
that the cheque was issued as security. The appellate Court did not
find the defence sufficient to displace the statutory presumptions.
26. Having considered the grounds raised by the petitioner, this
Court finds that the principal contentions concerning the amount
borrowed, repayment of the loan, the character of the cheque as a
security cheque and the applicability of the statutory presumptions
have been addressed in the impugned appellate judgment. The legal
principles governing the presumptions under Sections 118 and 139 of
the Negotiable Instruments Act, 1881 as well as the applicability of
Section 138 to a cheque issued as security, do not support the
proposition that the petitioner’s defence must necessarily result in
acquittal.
27. In view of the aforesaid discussion, this Court finds no sufficient
ground to interfere with the judgment and order dated 18.01.2025
passed by the learned Sessions Judge, Nalbari, in Criminal Appeal No.
04/2024, affirming the conviction of the petitioner under Section 138
of the Negotiable Instruments Act, 1881 and modifying the sentence
imposed by the learned Chief Judicial Magistrate, Nalbari, in N.I. Case
No. 179/2018.
28. The judgment and order dated 18.01.2025 passed by the
learned Sessions Judge, Nalbari, in Criminal Appeal No. 04/2024,
affirming the conviction and modifying the sentence, calls for no
interference by this Court.
29. Accordingly, the criminal revision petition stands dismissed.
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30. Send a copy of this judgment to the learned courts below for
information and necessary action.

JUDGE

Miriam Degu
(SPA)
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