1 2025:CGHC:14558 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 372 of 2019 1 - Dinesh Namdeo S/o Late Ramsevak Namdeo Aged About 38 Years R/o Ward No. 07, Pithora, Police Station And Tahsil- Pithora, District- Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh ... Appellant versus 1 - Jitendra Ogare S/o Shri Lokprakash Ogare Aged About 38 Years R/o Baya Road, Lahraud, Police Station And Tahsil- Pithora, District- Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh ... Respondent For Appellant : Mr. Ayush Lall, Advocate appears on behalf of Mr. Surfaraj Khan, Advocate For Respondent : Mr. Shikhar Sharma, Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 26.03.2025 1. The appellant/complainant has filed present acquittal appeal under Section 378(4) of the Criminal Procedure Code by which learned Judicial Magistrate First Class, Pithora, District Mahasamund (C.G.) in Criminal Complaint Case No. 225 of 2018 has dismissed the complaint filed by the appellant and acquitted the respondent/accused for commission of offence under Section 138 of the Negotiable Instrument Act, 1881 (in short “the N.I. Act, 1881”). BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2025.04.15 14:26:24 +0530 2 2. The brief facts reflected from the record are that due to cordial relationship between the appellant and the respondent the appellant/complainant has given Rs. 2,15,000/- as lent and to repay the same the accused has given cheque bearing No. 000009 dated 05.03.2018 drawn in the bank account maintained by him at H.D.F.C. Bank, Branch Basna wherein the said cheque was returned with an endorsement “dishonored due to insufficient fund”. The same was communicated to the appellant vide memo dated 20.06.2018 but was received on 24.06.2018. The complainant has sent a legal notice on 10.07.2018 to accused demanding amount of cheque which was returned to him with an endorsement that the respondent has gone somewhere else. The accused has not paid the amount of cheque to the complainant which has necessitated the complainant to file an application under Section 138 of the the N.I. Act, 1881. 3. The complainant to substantiate his claim has exhibited documents namely dishonored cheque (Ex. P/1), forwarding memo (Ex. P/2), deposit slip (Ex. P/3), envelope in which memo was given by the Bank (Ex. P/4), registered notice dated 10.07.2018 (Ex. P/5), postal receipt (Ex. P/6), notice which was sent through registered post which has been returned (Ex. P/7). The appellant to substantiate his case was examined by way of an affidavit under Section 145 of the N.I. Act. The witness in the cross examination in paragraph 10 has denied that he has given notice beyond statutory period and he has stated that the information with regard to the dishonor of cheque was given at a belated stage, thus he has also denied that on 25.05.2018 he has received information with regard to dishonour of the cheque. He has 3 voluntarily stated that the same was received after two or three days of 25.05.2018. He has also admitted that his counsel has sent a legal notice on 10.07.2018 to the accused. The accused has not examined himself but he was examined under Section 313 of Cr.P.C. wherein he stated that he is innocent and has been falsely implicated. 4. Learned trial Court vide impugned judgment dated 27.03.2019 has dismissed the complaint by recording his finding at paragraph 10 that the statutory notice under Section 138 of the N. I. Act is required to be given within 30 days which has been given after 30 days and the notice was served on 10.07.2018 which is beyond the time period. The learned trial Court has dismissed the complaint on the count also that the complainant has not complied with the ingredients of Section 138 of the N.I. Act, 1881 and has recorded its finding in paragraph 13 that since cheque forwarding memo does not bear seal and signature of bank Officer therefore, it cannot be said that the cheque was dishonored, accordingly, it has also recorded its finding that the complainant is unable to prove that the cheque was dishonored and dismissed the complaint. Being aggrieved with this order, the complainant has preferred this appeal. 5. Learned counsel for the appellant would submit that learned trial Court has acted with material anomalies and illegality in passing the impugned judgement (Annexure A-1), by acquitting the respondent, which is liable to be set aside by this Hon'ble Court, for the reason that the cheque issued by the respondent was for discharge of legally enforceable liability, which is not disputed by the parties. Even the concept of cheque given in security has been held to be a valid liability 4 as per the dictum passed by the Hon'ble Supreme Court of India, in the matter of Sampelly Satyanarayana Rao vs. Development Indian Renewable Energy Agency Limited, reported in (2016) 10 SCC 458. The same judgement though relied by the appellant in argument before the trial court has not been discussed by the learned court below. He would further submit that learned trial court without assigning any reason has held that the cheque was not issued for any debt or liability which is perverse and liable to be quashed by this Court. He would further submit that learned trial Court has utterly failed to appreciate the testimony of the complainant witness and wrong finding has been drawn by acquitting the respondent/accused and would pray for allowing the appeal. 6. Per contra learned counsel for the respondent opposing the submission would submit that learned trial Court has not committed any illegality and would pray for dismissal of the acquittal appeal. 7. I have heard learned counsel for the parties and perused the records. 8. From the submissions made by the parties, the points required for determination of this Court are: I. whether the statutory notice required under Section 138 of the N.I. Act has been given beyond 30 days which vitiates entire trial? II. whether the trial Court was justified in dismissing the complaint by not relying upon the cheque returning memo as it does not bear seal and signature of the bank official to attract Section 146 of the N.I. Act, 1881? 9. To appreciate the point No. 1 framed by this Court, it is expedient for this Court to extract the evidence adduced before learned trial Court. 5 The complainant in his examination-in-chief has reiterated the facts mentioned in the complaint filed under Section 138 of the N.I. Act wherein he has categorically stated that the notice of dishonor of cheque by the Bank was sent through registered mode on 20.06.2018 which was received by him on 24.06.2018, thereafter, he has filed a complaint on 10.07.2018. The said witness was extensively cross- examined by the accused and in paragraph 10 it has been re-affirmed that he has given notice within statutory time period prescribed under Section 138 of the N.I. Act and he has also stated that intimation regarding dishonor of the cheque was given at a belated stage and though he has denied that intimation was given on 25.05.2018 but he has received after 2 or 3 days of 25.05.2018, thereafter notice was sent. Learned trial Court by wrongly considering the said evidence has recorded its finding that there was no compliance of Section 138 of the N.I. Act as the notice was given at belated stage. This finding suffers from perversity and illegality as the complainant in his examination-in- chief in clear terms has stated that the intimation regarding dishonor of cheque amount was sent by the Bank on 20.06.2018 and he received the same on 24.06.2018 thereafter he has sent legal notice to the respondent on 10.07.2018. In the cross-examination he has re-affirmed the said submission still learned trial Court has committed illegality in giving perverse finding. Even otherwise, Postal Receipt (Ex.P/6) was exhibited before learned trial Court wherein date of mention in the forwarding memo is 25.05.2018 but in the envelope it has been mentioned that information was sent on 20.06.2018 and was received on 24.06.2018. Postal receipt is also affixed in the envelope and this 6 documentary evidence has not been rebutted by the accused to demonstrate that information regarding dishonor of cheque was received by the complainant prior to 20.06.2018, as such there is no delay in issuance of notice. The accused has not placed any such evidence or any material was placed on record to rebut the date of issuance of notice dated 20.06.2018. Even the accused has not been examined before learned trial Court which clearly suggests that the accused is unable to rebut the presumption granted in favour of the accused by recording the finding. Thus the reason assigned by learned trial Court is incorrect proposition of law and is liable to be quashed. 10. From the material placed on record before the trial Court, it is quite vivid that the documentary evidence is available on record which clearly demonstrates that the cheque was dispatched on 20.6.20108 and received by the complainant on 24.06.2018, the same cannot be diluted by oral evidence, still the trial Court has wrongly interpreted the evidence adduced before it and passed an order which suffers from perversity and illegality. Accordingly point No. 1 is answered in favour of the accused 11. To appreciate point No. 2 framed by this Court, it is expedient for this Court to go through the provisions of Sections 118, 139 and 146 of the N.I. Act, 1881, which are reproduced below: Section 118 of the N.I. Act, 1881: “118. Presumptions as to negotiable instruments.—Until the contrary is proved, the following presumptions shall be made:— (a) of consideration:—that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred 7 for consideration; (b) as to date:—that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance:—that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer:—that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements:—that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on; (f) as to stamp:— that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course:—that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.” Section 139 of the N.I. Act, 1881: “139. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.” Section 146 of the N.I. Act, 1881: “146. Bank’s slip prima facie evidence of certain facts.—The Court shall, in respect of every proceeding under this Chapter, on production of Bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.” 12. This Court while deciding the point No. 1 has already held that the cheque was given towards liability not as security as the accused is unable to rebut the same and even to substantiate his stand that the description made in the cheques has been written by another person, no permissible evidence has been adduced. Thus, the presumption 8 under Section 139 of N.I. Act, 1881 is held to be in favour of complainant, therefore, merely due to no seal and signature of cheque return forwarding memo by the bank, the finding of the trial Court that no presumption regarding dishonor of cheque can be drawn, is misconceived. Even otherwise, the purpose of cheque return memo is to give the information of holder of the cheque that his cheque on presentation could not be encashed due to various reasons as mentioned in the cheque return memo. Even as per Section 146 of N.I. Act, 1881, the cheque return on presentation presumed the fact of dishonor of cheque unless and until such fact is disapproved. It is pertinent to mention here that neither Section 138 nor 146 of the N.I. Act, 1881 prescribed any particular form of cheque return memo, it is a nothing but a mere information given by the due holder of a cheque that cheque has been returned as unpaid. If the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque return memo as invalid or illegal. The cheque return memo is not document which is required to be covered under Bankers Book (Evidence Act), 1891 if there is any infirmity in the cheque return memo, it does not render entire trial under Section 138 of N.I. Act, 1881 as nullity. The Hon’ble High Court of Delhi in case of Guneet Bhasin Vs. State of NCT of Delhi & Anr. & Ors. In CRL.M.C. 4100/2022 & CRL.M.A. 16919/2022(Stay) has taken same view. 13. High Court of Allahabad in case of Mohd. Yunus Malik Vs. State of U.P. and Another in application under Section 482 No. 41434 of 2022 in Neutral Citation no. 2023:AHC:140834 relying upon the judgment of Delhi High Court in case of Guneet Bhasin Vs. State of NCT of Delhi 9 and Others in paragraph 13 has held as under: “From perusal of the same, it is apparently clear that if the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque as invalid or illegal. Further, if there is any infirmity in the cheque or letter,it does not render entire trial under Section 138 of Act, 1881 as nullity.” 14. The High Court of Madras in case of India Cements Investments Services Limited Vs. T. P. Nallusamy in Crl. A. No. 13 of 2014 Neutral Citation No. 2017(1) MLJ(Crl)689 in paragraph 56 reads as under: “56. A perusal of the Judgment of the First Appellate Court in C. A. No. 1 of 2013 dated 08.11.2013 shows that the First Appellate Court had observed at paragraph 10 that in Ex. P7 -Cheque, it was written as ‘21.1.2000’ and the last ‘0’ was corrected as ‘8’ mention of on what date they were presented for collection. Moreover, the First Appellate Court went on to add that to prove the written memos filed, the HDFC Bank Manager was not examined to show how much amount was available in Respondent/Accused Account. In this connection, though a stand is taken on behalf of the Appellant/Complainant that as per Section 146 of the Negotiable Instruments Act, the Manager of the Bank need not be examined to speak about the written of three cheques etc., this Court is of the considered opinion that the Appellant/Complainant ought to examine the concerned Bank Manager to substantiate his version of the case, In fact, the evidence of the Bank Manager in favour of the Appellant/Complainant will strengthen its case.” 15. Considering the fact and law on the subject, it is quite vivid that the Learned trial Court has failed to consider the fact that the appellant is able to prove that the cheque in question was given towards discharge, as such this finding is quashed. So far as other finding that cheque forwarding memo does not bear the seal and signature of bank official, as such presumption under Section 138 of N.I. Act, 1881 cannot be raised, is misconceived and deserves to be set aside, and accordingly it is quashed. 10 16. Learned trial Court in the impugned judgment dated 27.03.2019 has recorded its finding in paragraph 13 that the cheque was given towards liability and this finding has not been challenged by the accused. Accordingly, it is affirmed that the cheque was given towards liability. 17. Consequentially, the appeal is partly allowed and the matter is remitted back to the trial Court for deciding the case as per the direction given by this Court in forgoing paragraphs. Since the parties have already appeared before this Court, no fresh notice is required to be issued to the parties. The complainant and accused shall appear before the concerning trial Court on 08th May, 2025. Sd/- (Narendra Kumar Vyas) Judge Bhumika