1 2025:CGHC:42831 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 174 of 2014 1 - Kaliram Mehar (Died And Deleted) As Per Hon'ble Court Order Dated 08.04.2025 1.1 - Devkaran Gajendra, S/o Kaliram Mehar, Aged About 42 Years R/o Chandrika Vihar, Near Rda Building, Boriyakhurd, District Raipur (C.G.) ... Applicant(s) versus 1 - Kamal Kumar Makhija And Anr. S/o Shivan Das Makhija Aged About 47 Years R/o Near Dr. Munna, Shiv Chowk, Lalpur, Tah. Raipur, Civil And Rev. Distt. Raipur C.G. , Chhattisgarh 2 - State Of Chhattisgarh Through Ps Tikrapara, Distt. Raipur, C.G., District : Raipur, Chhattisgarh ... Respondent(s) (cause title taken from case information system) For Applicant : Mr. Bhaskar Pyasi, Advocate. For Respondent No.1 : Mr. Shivendu Pandya, Advocate. For Respondent/State : Ms. Vaishali Mahilong, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Order on Board 22.08.2025 1. Heard Mr. Bhaskar Pyasi, learned counsel for the applicant. Also heard Mr. Shivendu Pandya, learned counsel for the respondent No.1 as well as Ms. Vaishali Mahilong, learned counsel appearing for the KUNAL DEWANGAN Digitally signed by KUNAL DEWANGAN 2 respondent/State. 2. It has been brought to the notice of this Court that during the pendency of this revision, the original applicant Kaliram Mehar (applicant No.1) has passed away and his legal heir, Devkaran Gajendra (applicant No.2), has been substituted to pursue the present revision on his behalf. 3. The present revision petition has been filed by the revisionist with the following prayer:- “It is therefore, most humbly prayed that this Hon’ble Court may kindly be pleased to set aside the impugned judgment and the applicant/accused be acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, in the ends of justice.” 4. The case of the prosecution in brief is that the complainant - Kamal Kumar Makhija filed a complaint case against the original applicant under Section 138 of the Negotiable Instruments Act, 1881. In complaint case it was alleged by the complainant that one agreement to sale was executed on 27.10.2007 between complainant and original applicant in respect of house constructed over land admeasuring 1000 Sqft. Bearing Survey No. 330/2, situated in Devpuri, Patwari Halka No. 114. It was agreed that original applicant will sell out the aforementioned house to the complainant for a consideration of Rs. 5,75,000/- lakhs and complainant had duly paid Rs. 3,75,000/- to the original applicant herein. In para 3 of the agreement it has been mentioned that registered sale deed has to be executed within 3 months from the date of agreement to sale (27.10.2007), however, in para 6 it has been mentioned that possession of the house is being 3 handed over to the complainant on 27.10.2007 itself. In para 7 of the agreement it has been mentioned that complainant will pay Rs. 2 lacks to Mr. A.Rehman Khan Advocate, however, any right or liability in respect of Rs. 2 lacks towards Mr. A. Rehman Khan Advocate is not mentioned in the said agreement. It was further alleged that despite repeated request by complainant, original applicant failed to execute the sale deed in favour of complainant Assistant Director per agreement to sale dated 27.10.2007. After some time, original applicant told the complainant that aforementioned house was mortgaged UCO Bank, Labhandi and as the loan has not been repaid by original applicant therefore, it is impossible to execute sale deed. Thereafter, complainant asked for payment of Rs. 5,75,000/- and original applicant has handed over Cheque No. 002645 dated 08.10.2009 drawn on Bank of India, Pachpedi Naka Branch for a sum of Rs. 5,75,000/-. It was further submitted that complainant submitted the cheque to its banker (Oriental Bank of Commerce, Raipur) and same has been dishonored due to insufficient funds in account of applicant. It was further submitted that complainant sent legal notice to the original applicant calling upon him to make payment within 15 days and as the original applicant has not paid the amount, complainant was constrained to file Complaint Case. 5. The original applicant in his statement recorded under Section 313 of the Code of Criminal Procedure stated that the complainant is residing with his family in original applicant's house since last 4 years and in the name of handing over possession of the house of the original applicant, complainant obtained blank cheque duly signed by applicant and similarly obtained signatures in 2-3 agreements. At the 4 time of recording of statement he has further stated that complainant is still having possession over the original applicant's house which could fetch rent to the tune of Rs. 5,000/- per month. So far as agreement to sale dated 27.10.2007 (Exhibit P/8) is concerned, one of the witness of said agreement had denied his signatures and another witness has scored out his signatures. 6. The service of legal notice on original applicant is not proved, even then courts below has recorded a finding to the effect that legal notice calling upon the original applicant to make payment within 15 days has been duly served and proved. It is not disputed that the alleged acknowledgement (Exhibit P/7) does not contain the seal of concerned post office. It is pertinent to mention that in complaint case there is no material to prove service of notice on applicant herein. 7. After appreciating the evidence and material available on record, the learned Judicial Magistrate vide its judgment dated 16.07.2012, recorded a finding to the effect that the original applicant despite the service of notice in respect of dishonor of Cheque failed to pay Rs. 5,75,000/- to the complainant and held the original applicant guilty for the offence under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo simple imprisonment of 6 months and imposed fine of Rs. 1,000/- and in default of payment of fine amount to further undergo simple imprisonment for one month. 8. Being aggrieved by the judgment passed by learned Magistrate, the original applicant preferred an appeal before the learned Sessions Judge, however same has been dismissed and the learned Sessions Judge looking into the document Exhibit D/2 (agreement) by which it has been agreed between the parties that original applicant would pay 5 Rs. 4,90,000/- to the complainant and Rs. 1 lac has already been paid and further considering into the fact that complainant was resided in the house of original applicant without payment of rent, whereby partly allowed the appeal and imposed fine of Rs. 3 lakhs, in default of payment of fine amount to further undergo simple imprisonment for a period of 6 months. It was further held that fine amount deposited by applicant be paid to the complainant as damages as per Section 357 of the Code of Criminal Procedure. 9. Learned counsel for the applicant submits that the learned Sessions Judge failed to appreciate the fact that the actual service of demand notice (legal notice) on applicant is not proved and therefore, cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 could not be taken on the basis of presumption. The learned Sessions Judge ought to have appreciated that agreement to sale dated 27.10.2007 Exhibit P/8 was not complied with by parties and as the complainant was having possession of the house of original applicant since 27.10.2007, having upper hand obtained blank cheque duly singed by original applicant for handing over vacant possession of the house to the original applicant who is member of Schedule Tribe. In view of aforementioned facts it is apparent that cheque was not issued towards any liability and same has been got issued in the name of handing over vacant possession of the house to its real owner (applicant). He further submits that the learned Sessions Judge failed to appreciate the fact that in entire complaint case there is no evidence in respect of date of service of legal notice on original applicant. The learned Sessions Judge failed to appreciate the fact that the complainant had admitted that he has 6 not produced any short of document in respect of payment of Rs. 2 lakhs to Mr. A.Rehman Khan, Advocate. The learned Sessions Judge ought to have appreciated the fact that the complainant has in fact cheated the original applicant as he had taken possession of the original applicant's house on 27.10.2007 itself, resided in it with family without payment of any short of rent to the origianl applicant. In any case the original applicant is entitled for around 2 lakhs as rent towards and as there is no material about payment of Rs. 2 lakhs to Mr. Rehman Khan, Advocate. The learned Sessions Judge failed to appreciate the fact that origianl applicant has paid Rs. 1 lack to the complainant during pendency of complaint case, therefore, liability if any (though not admitted) could not exceed to Rs. 75,000/-. The learned Sessions judge also failed to appreciate that the application filed by origianl applicant in complaint case under Section 315 of the Code of Criminal Procedure to get examined himself as witness has been dismissed, which caused grave prejudice to the original applicant as the right of fair trial and to prove his defence has been taken away. 10. Learned counsel for the applicant further submits that the learned Sessions judge failed to appreciate that the application filed by original applicant in complaint case under Section 243 of the Code of Criminal Procedure to get report of handwriting expert in order to prove that he has handed over blank cheque without further mentioning other particulars in cheque and same were filled in by complainant has been dismissed, which caused grave prejudice to the original applicant as the right of fair trial and to prove his defence has been taken away. The learned Sessions Judge ought to have appreciated that after 7 receiving of part payment of Rs.1 lakh from the original applicant during pendency of complaint case, same become liable to be dismissed on acceptance of part payment towards alleged liability. The learned Sessions Judge ought to have appreciated that as the original applicant has been sentenced to fine only and to imprisonment in default of payment of the fine, Court may order that fine shall be payable either in full on or before a date not more than 30 days from the date of the order. In instant case learned sessions judge even refused to take and consider the application filed by applicant under Section 424 of the Code of Criminal Procedure, praying for payment of fine amount in installments. Thus, the impugned order liable to be set aside. 11. On the other hand, learned counsel appearing for the respondent No.1 as well as learned Panel Lawyer appearing for the Non-applicant No.2/State submit that the trial Court as well as appellate Court have rightly passed the order, in which no interference is called for. 12. I have heard both the parties and perused the case diary and documents appended thereto. 13. From perusal of the record, it transpires that the trial Court found the accused, Kaliram Mehar, guilty for offence under Section 138 of the Negotiable Instruments Act for issuing a cheque dated 08.10.2009 for an amount of ₹5,75,000/-, which was dishonoured by the bank. The accused failed to make payment despite service of statutory notice. The trial Court held that such conduct amounts to a criminal act of cheating, which undermines public confidence in the banking system and results in financial loss. After appreciating the evidence and material on record, the learned trial Court convicted the accused 8 under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for six months, along with a fine of ₹1,000/-, and in default of payment of fine, to further undergo simple imprisonment for one month. Being aggrieved by the judgment of the trial Court, the accused preferred an appeal before the learned Sessions Judge. The appeal was partly allowed and while maintaining the conviction under Section 138 of the Negotiable Instruments Act, the learned Sessions Judge modified the sentence by imposing a fine of ₹3,00,000/-, with a default stipulation of six months' simple imprisonment. It was further directed that the fine amount, once deposited, shall be paid to the complainant as compensation in terms of Section 357 of the Code of Criminal Procedure. 14. Considering the aforesaid fact and circumstances of the case and the nature of offence levelled against the original applicant/accused, Kaliram Mehar, I am of the view that the learned appellate Court has not committed any illegality or infirmity in affirming the conviction and modified the sentence as awarded by the trial Court for offence under Section 138 of the Negotiable Instruments Act, as such, the criminal revision filed by Devendra Gajendra, who is legal heir of accused- Kaliram Mehar, being devoid of merit is liable to be and is hereby dismissed. 15. Let a copy of this order and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ramesh Sinha) Chief Justice Kunal