1 2025:CGHC:7959 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 502 of 2024 • Smt. Shakuntala Sinha W/o Shri Ashok Sinha, Aged About 55 Years R/o Near Balji Furniture Mart, Akash Nagar Industrial Area, Jagdalpur, District Bastar C.G. ... Appellant. versus • Smt. Tripti Gupta W/o Shri Rajesh Gupta, Aged About 47 Years C/o. Ruplal Kashyap, Power House Chowk, Jagdalpur, District Bastar C.G. ... Respondent(s) For appellant : Mr. Punit Ruparel, Advocate. For Respondent : Mr. Tarendra Kumar Jha, Advocate along with Mr. Uttam Chand, Advocate. (Hon’ble Mr. Justice Narendra Kumar Vyas) Order on Board 14/02/2025 1. The appellant/complainant has filed this appeal against the order dated 26-5-2022 passed by the Judicial Magistrate First Class, Bastar, Jagdalpur, District Bastar (CG) in complaint case No. 179 of 2 2016 whereby the learned trial Court has acquitted the respondent/accused from the offence punishable under Section 138 of the Negotiable Instrument Act. 2. The brief facts of the case are that the appellant/complainant has filed a complaint before the learned Judicial Magistrate First Class, Basna under Section 138 of the Negotiable Instruments Act alleging that on 15-10-2008 the accused/respondent sought Rs.2,00,000/- from the complainant, Rs.2,00,000/- on 10-11-2008 and Rs.1,00,000/-on 13-12-2008 ie., total amount of Rs.5,00,000/- to purchase a plot and she promised the complainant that she will return the amount within a period of two months along with interest. When the respondent/accused did not return the said amount within a period of two months, on 10-10-2009 the complainant went to the house of the accused where she misbehaved with her and refused to return the loan amount. Subsequently, the respondent has given a cheque bearing No. 095422 of Rs.5,00,000/- drawn on Indian Bank Branch Raipur to repay the loan amount. The appellant deposited the said cheque in the Indian Bank, for payment which was returned back with an endorsement that the said cheque was dishonoured ‘due to insufÏcient funds’ in the account maintained by the accused. Thereafter, the appellant sent a registered legal notice through his counsel on 27-11-2009 but the same was returned with remark “refused to accept” which has necessitated the appellant to file a complaint case against the respondent under Section 138 of the Negotiable Instruments Act before the learned Judicial Magistrate First Class. 3. Learned trial Court taking cognizance of issue has summoned notice to the respondent/accused. After receiving the notice, 3 respondent accused has appeared before the trial Court and pleaded no guilty. During the trial, the complainant has examined himself by way of an afÏdavit as provided under Section 145 of the Negotiable Instruments Act and exhibited dishonoured cheque (Ex,.P/1), receipt of deposit of cheque (Ex.P/2), information regarding dishonoured of cheque (Ex.P/3), postal receipt of State Bank Main Branch Jagdalpur ( Ex.P/4), cheque forwarding memo (Ex.P/5) and report of delivery of legal notice (Ex.P/6). The complainant was extensively cross examined by the accused wherein she has admitted that the accused has given a blank cheque wherein she has put only signature. The complainant has specifically denied that the accused has given Rs. 5,00,000/- to her husband still the cheque has not been returned by her. The complainant has also admitted that the cheque amount has been shown in the income tax return filed by her. She has also stated that whatever amount she has given to the accused was commission from the real estate business and this fact has not been mentioned in the complaint. The complainant has voluntarily stated that after pursuing the accused for one year, she has given the cheque in her house only. 4. The accused/respondent has not examined any witness but she was examined under Section 313 of Cr.P.C., wherein she has stated that she has given two cheques for purchasing of plot but the said transaction has been canceled and she has already received the cash amount. She has also stated in her defence that out of two cheques one cheque has been returned by the complainant and complainant has committed similar fraud with other persons also. 5. Learned trial Court vide impugned order dated 26-5-2022 has dismissed the complaint case by recording its finding that the 4 complainant is unable to prove the case beyond reasonable doubt that the said cheque dated 13-10-2009 for Rs.5,00,000/- was given for any debt or liability and accordingly dismissed the complaint. Learned trial Court has also recorded its finding that cheque number has not been mentioned in the notice which also creates doubt over the conduct of the complainant and accordingly the complainant is unable to prove that legal notice was given by the accused and accordingly on all the counts it has dismissed the complaint. Being aggrieved by the said order, the appellant/complainant has preferred this acquittal appeal. 6. Learned counsel for the appellant/complainant would submit that the finding recorded by the learned trial Court suffers from perversity or illegality and has not taken into consideration the fact that notice was duly served upon by the complainant on the address given in the cause title before the learned trial Court, therefore learned trial Court should have held that as per Section 27 of the General Clauses Act, notice was deemed to have been served upon the accused. He would further submit that the learned trial Court has committed illegality in recording the finding that the accused was justified to rebut the issuance of notice and also failed to prove that the said cheque was given with regard to any liability or debt. He would further submit that the finding of the learned trial Court is perverse and contrary to the law on the subject. He would further submit that once the cheque was given by the accused, then presumption shall be drawn that the cheque was issued for the discharge of any debt or other liability unless it is rebutted by the accused by leading evidence to rebut the presumption. In the present case, no such evidence was adduced by the accused. He would further submit that though the 5 complainant has admitted that blank cheque was given but the amount has been filled up in the cheque by the hand writing of the complainant, still it cannot be said that it is not a negotiable instrument and if the cheque is dishonoured due to insufÏcient fund in the account, still the liability will fasten on the accused. To substantiate his arguments, he has relied upon the judgment of Hon’ble Supreme Court in the case of Basalingapa vs. Mudibasappa, reported in (2019) 5 SCC 418 and Bir Singh vs. Mukesh Kumar, reported in (2019) 4 SCC 197. 7. On the other hand, learned counsel for the respondent/accused would submit that the learned trial Court has recorded its finding rightly in favour of the accused as the complainant has not been able to prove by cogent evidence that the cheque was given towards any liability and the accused by preponderance of probabilities has proved its case that the cheque was not given for any liability and would pray for dismissal of the appeal. 8. I have heard learned counsel for the parties and considered the rival submissions made by the parties. 9. From the aforesaid discussion, the point emerged for consideration of this Court is whether the finding of the learned trial Court with regard to the fact that the cheque was not given towards any liability, is legal and justified? 10. To appreciate this point, this Court has to be considered the evidence examined before the trial Court. The complainant in his examination-in-chief has reiterated the stand taken by her in the complaint and this witness was extensively cross examined by the accused wherein she has admitted that the accused has given a blank cheque wherein she has put only signature. The complainant has specifically denied that the accused has given Rs. 5,00,000/- to 6 her husband still the cheque has not been returned by her. The complainant has also admitted that the cheque amount has been shown in the income tax return filed by her. She has also stated that whatever amount she has given to the accused was commission from the real estate business and this fact has not been mentioned in the complaint. The complainant has voluntarily stated that after chasing the accused for one year, she has given the cheque in her house only. The complainant in her evidence has also explained her financial status her income tax return but no cross-examination to rebut the financial status has been brought on record by the accused. She has denied in para 32 that the cheque was misused by the complainant. She has also denied the suggestion that the accused has proposed to purchase the plot for sale consideration of Rs.19,00,000/- and out of which Rs.5,00,000/- has been given by the complainant and for remaining amount a blank cheque was given by the accused and the same has been misused by the complainant. 11. The record of the case further demonstrates that the accused has not examined any witness but she was examined under Section 313 of the Cr.P.C wherein she has stated that she has given cheque to purchase plot from Ashok Sinha and she has also given cheque of Rs,.5,00,000/- but the transaction could not succeed, still the accused has not given the cheque, as such accused has committed fraud with her. But to substantiate such submission no documentary evidence was placed before the trial Court by the accused. She has also stated in her statement under Section 313 Cr.P.C. that the complainant has cheated her but no FIR in this regard has been placed before the trial Court to rebut the presumption in favour of the complainant. Even if any transaction 7 was executed with the complainant’s husband for purchase of plot, there must be some documentary evidence like agreement to sale the property as it is necessary that transfer by way of sale of immovable property cannot be done without any written agreement to sale or execution of sale deed. As such in absence of material placed on record by the accused it cannot be said that the accused is able to rebut the presumption in favour of the accused. Thus, it is quite vivid that the learned trial Court has committed illegality in recording the finding that the cheque was not given towards any liability. Accordingly, point No.1 is answered against the accused and in favour of the complainant. 12. So far as second submission is concerned, from the submissions made at bar, it is quite vivid that even if any blank cheque is given and the details have been incorporated in the handwriting of the complainant, certainly it falls within the ambit of instrument under the Negotiable Instrument Act, 1881 in view of the law down by the Hon’ble Supreme Court in the case of Basalingapa vs. Mudibasappa, reported in (2019) 5 SCC 418 wherein Hon’ble Supreme Court has held in para 12 which read as under:- “12. The complainant being holder of cheque and the signature on the cheque having not been denied by the accused, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. Before we refer to judgments of this Court considering Sections 118 and 139, it is relevant to notice the general principles pertaining to burden of proof on an accused especially in a case where some statutory presumption regarding guilt of the accused has to be drawn. A Three-Judge Bench of 12 WWW.LIVELAW.IN this Court in Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808 laid down following:- “23. ……………………One of the cardinal principles which has always to be kept in view in 8 our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. Basalingapa vs. Mudibasappa, reported in (2019) 5 SCC 418 wherein Hon’ble Supreme Court has held in para 12 & which read as under and would pray for quashing of the impugned order passed by the learned trial Court. “12. The complainant being holder of cheque and the signature on the cheque having not been denied by the accused, presumption shall be If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal”. 13. In the case of Bir Singh vs. Mukesh Kumar, reported in (2019) 4 SCC 197 wherein the Hon’ble Supreme Court has held in para 34, 36 and 38 which read as under. 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 9 any cogent evidence to show that the cheque was not issued in discharge of a debt. 38. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent- accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act”. 14. In the light of above stated position and considering the defence taken by the accused that the blank cheque was given by him but the entries were made by the complainant, therefore, it is an instrument and if it has been dishonoured then, the provisions of Section 138 of the N.I. Act are attracted. Thus, the finding recorded by the learned trial Court that the cheque was given by the accused is doubtful and deserves to be set aside. Similarly, further finding that the notice was given to the accused is also doubtful, this finding is also incorrect in view of Section 27 of the General Clauses Act, which provides that presumption should be drawn, that service is deemed effective when document is properly addressed, prepaid and sent by registered post unless a different intention appears. In the present case, accused has admitted in cross examination that notice was received by her but she has refused to accept it which clearly establishes that notice was served upon the accused, still the amount was not paid by the accused. Thus, it is presumed that notice was duly served upon 10 the accused and all the ingredients to attract the offence under Section 138 of the NI Act has been proved by the complainant, thus, the learned trial Court has committed illegality in dismissing the complaint which deserves to be quashed by this Court, accordingly the acquittal appeal deserved to be allowed. 15. Accordingly, the acquittal appeal is allowed and the impugned order dated 26-5-2022 is quashed. Now this court has to examine the quantum of punishment which can be inflicted upon the accused. Since it is a case under Negotiable Instrument Act, and the respondent being lady it is not desirable for this Court to impose punishment of jail sentence. Considering this aspect of the matter, it is directed that the accused/respondent will pay a sum of Rs.5,00,000/- which is the cheque amount along with Rs.50,000/- by way of compensation . The said amount shall be paid within a period of two months from the date of receipt of a copy of this order. Sd/- (Narendra Kumar Vyas) Judge Raju RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.03.27 17:00:52 +0530