1 2025:CGHC:22598 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 619 of 2024 Judgment Reserved on : 28.02.2025 Judgment Delivered on : 09. 06.2025 1 - Madhusudan Patel S/o Vipin Lal Patel Aged About 52 Years R/o Village Bhadarpali, Post Tosgaon, Police Station Basna, District Mahasamund Chhattisgarh. ... Appellant versus 1 - Chudamadi Patel S/o Sampat Lal Patel Aged About 35 Years R/o Village Banipali, Post Bhukel, Police Station Basna, District Mahasamund Chhattisgarh. ... Respondent For Appellant : Mr. Anil Kumar Gulati, Advocate For Respondent : Mr. Vivek Singhal, Advocate Hon'ble Shri Justice Narendra Kumar Vyas (CAV Judgment) 1. The appellant has filed the present acquittal appeal under Section 378(4) of the Code of Criminal Procedure, 1973 against the order dated 12.12.2019 (Annexure A/1) passed by the learned Judicial Magistrate First Class, Basna, District - Mahasamund (C.G.) in Complaint Case No. 230/2018 by which the learned Magistrate has dismissed the complaint filed under Section 138 of Negotiable Instruments Act, 1881 (in short “N.I. Act, 1881”) and acquitted the respondent/accused. BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2025.06.09 16:43:46 +0530 2 2. Brief facts of the case are that: (a) The complainant and respondent/accused are known to each other and because of good relation the accused has taken a loan of Rs. 9,00,000/- from the appellant for domestic work. It is also the case of the complainant that to discharge his debt and liability the accused has given a cheque bearing No. 648089 dated 11.05.2018 drawn at Dena Bank, Branch Basna for Rs. 9,00,000/-. (b) The said cheque was deposited in the account maintained by the complainant at Dena Bank, Branch Basna on 11.05.2018. The said cheque was returned on 14.05.2018 with endorsement “dishonored due to insufficient fund” vide memo dated 14.05.2018, Thereafter, the appellant had sent a legal notice to the accused on 15.05.2018 which was refused to accept by the accused and no amount of dishonored cheque was paid to the complainant which has necessitated the complainant to file a complaint case under Section 138 of N.I. Act, 1881 against the accused before the learned Judicial Magistrate First Class, Basna, District - Mahasamund (C.G.) registered as Complaint Case No. 230/2018. 3. The complainant to prove his case has examined himself by way of an affidavit as provided under Section 145 of N.I. Act, 1881 and has exhibited documents i.e. Cheque bearing no. 648089 dated 11.05.2018 (Exhibit P/1), Pay-In-Slip (Exhibit P/2), Cheque Return Memo dated 14.05.2018 (Exhibit P/3), Legal Notice (Exhibit P/4), Postal Receipt (Exhibit P/5) Acknowledgment Receipt (Exhibit P/6), Registered Receipt (Exhibit P/7) and Bank Statement (Exhibit P/8) in support of his complaint. The complainant examined himself by way of 3 an affidavit wherein he has reiterated the stand taken by him in the complaint. The witness was cross-examined wherein he has admitted that he has not done any documentation with regard to transaction done between him and the accused. He has also admitted that an agreement to refund of amount within three months was done between them. He has also admitted that during the period of agreement he has met the accused for 5-6 times and also stated that he has 15 acre land, his father owned 40 acres land and the fund is generated from the agricultural work. The complainant has also admitted that he has not paid the amount to the accused from the bank or by way of cheque. When he was asked to give explanation that from 07.01.2017 to 29.12.2017 the bank account does not reflect about transaction of amount of Rs. 9,00,000/- what is your say. On being asked, he has answered that he cannot give any explanation as a longer time has already been lapsed. 4. The accused has examined himself as a defense witness as well as recorded his statement under Section 313 of Cr.P.C. In the defense evidence he has stated that in the year 2014 he has taken Rs. 60,000/- from the complainant and out of which he has already paid Rs. 18,000/- and he has given a blank cheque to the complainant. He has also stated that he has to return only Rs. 42,000/- whereas complainant has mentioned Rs. 9,00,000/-. The witness was cross- examined by the complainant wherein he has stated that he has taken Rs. 60,000/- from the complainant in the year 2014 and out of which he has already given Rs. 18,000/- and has given blank cheque after putting his signature. He has also admitted that no complaint has 4 been filed by him regarding the allegations made in the examination- in-chief. The accused in his statement under Section 313 of Cr.P.C. has reiterated the same stand. The learned trial Court considering the evidence and material placed on record has recorded its finding that the complainant is unable to prove that the cheque was given towards any debt or liability as the complainant has not produced any material to draw presumption in favour of the complainant, accordingly, it has dismissed the complaint. Being aggrieved with this order of acquittal the complainant has preferred this acquittal appeal. 5. Learned counsel for the appellant would submit that the learned trial Court has failed to appreciate the evidence available on record and wrongly acquitted the accused. He would further submit that learned trial Court failed to appreciate that the cheque was given by the respondent to the appellant, the same was dishonored due to insufficient fund in the account of the respondent and accused has also admitted his signature in the cheque which prima facie establishes that cheque was given towards debt or liability. He would further submit that the accused is unable to rebut the presumption drawn in favour of the complainant, thus, he would pray for quashing of the impugned order. 6. Per contra, learned counsel for the respondent would submit that the order passed by learned trial Court is legal and justified. He would further submit that the complainant has not placed any material on record to demonstrate that the said cheque was given by the accused towards any debt or liability and would pray for dismissal of the appeal. 5 7. I have heard learned counsel for the parties and perused the record. 8. Considering the rival submissions of the parties, the point emerged for determination by this Court is: “Whether the impugned order of dismissal of the complaint dated 12.12.2019 is legal, justified and warrants interference by this Court?” 9. To appreciate this point framed by this Court, it is expedient for this Court to go through the evidence brought on record. The complainant in the cross-examination has categorically admitted the fact that there was no documentation with regard to transaction with the accused and he has also admitted that in the account maintained by him for the period from 07.01.2017 to 29.12.2017 does not reflect transaction of Rs. 9,00,000/- in the bank account. The accused in his evidence has categorically stated that he has borrowed Rs. 60,000/- from the complainant out of which Rs. 18,000/- has already been given and remaining amount was Rs. 42,000/- and has given blank cheque wherein entries have been made by the complainant. This evidence remains unrebutted as no effective cross-examination on this aspect has been done, as such the finding recorded by the trial Court that the complainant has failed to prove that the cheque was given towards any debt or liability cannot be found faulty, suffers from perversity or illegality warranting interference by this Court. Thus, the impugned judgment is legal and justified does not warrant interference by this Court. 10. From the bare perusal of the evidence, it is quite vivid that the complainant has not produced any document towards debt or liability 6 for which the accused has given cheque. On the contrary the accused has proved that he has taken only Rs. 60,000/- from the complainant out of which he has already paid Rs. 18,000/- and balance amount is Rs. 42,000/- only. He has also stated that he has given a blank cheque wherein the entries have been made by the complainant, this evidence remains unrebuttal, as such, the complainant miserably failed to demonstrate that the said cheque was given towards any debt or liability which is essential for the complainant to prove the presumption as required under Section 139 of the N.I. Act, 1881. It is well settled position of law that the initial burden lies upon the complainant then only the rebuttal is required to be done by the accused. The Hon’ble Supreme Court in case of Rajesh Jain vs. Ajay Singh reported in 2023 (10) SCC 148 has considered the ingredients of the offence enumerated in Section 138 of N.I. Act, 1881 and on its fulfillment, the offence under Section 138 of N.I. Act, 1881 will be attracted if the accused is unable to rebut the statutory presumption contemplated by Section 139 of the N.I. Act, 1881. The Hon’ble Supreme Court in paragraphs 26 to 28 has held as under: “26. In Gimpex Private Limited vs. Manoj Goel, this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure: (1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account; (i) The cheque being drawn for the discharge in whole or in part of any debt or other liability; (iii) Presentation of the cheque to the bank arranged to be paid from that account, (iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it 7 exceeds the amount (v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and (vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice. 27. In K. Bhaskaran v. Sankaran Vaidhyan Balan8 this Court had summarised the constituent elements of the offence in fairly similar terms by holding: “14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice.” 28. The five (5) acts as set out in K Bhaskaran’s case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex’s case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability.” 11. Again the Hon’ble Supreme Court in case of N. Vijay Kumar vs. Vishwanath Rao N. reported in 2025 SCC Online 873 has held in paragraphs 11, 13 and 14 which reads as under: “11. Considering the sum total of the above, we find that the probable defence on the part of the accused has been established. Once such a defence is established, the burden again shifts upon the complainant to now establish his case beyond a reasonable doubt, for after all, the effect of Section 138 of the N.I. Act is a criminal conviction. Reference may be made to Rajesh Jain v. Ajay Singh12 and, more particularly Para 44 8 thereof, which reads as under: “44. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption “disappears” and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa v. Mudibasappa {Basalingappa v. Mudi basappa, (2019) 5 SCC 418: (2019) 2 SCC (Cri) 571: AIR 2019 SC 1983]; see also, Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184: AIR 2010 SC 1898}]” 13. Keeping in view the above factors, it cannot be said that the complainant was able to discharge the burden once it had shifted back upon him, with the accused having discharged the burden of Sections 118 and 139 of the N.I. Act. 14. Consequent to the above discussion, we are of the view that the Trial Court was correct in recording a finding of acquittal in favour of the accused and reversal thereof by the High Court in terms of the impugned judgment, with particulars as in Para 1, was unjustified. As a result, the appeal is allowed.” 12. Thus, the complainant has miserably failed to prove the ingredients of Section 138 of N.I. Act, 1881 and accordingly, the learned Judicial Magistrate First Class has rightly acquitted the accused. This finding is in accordance with the law laid down by the Hon’ble Supreme Court in case of M/S Rajco Steel Enterprises v. Kavita Saraff and Another reported in 2024 (9) SCC 390 wherein the Hon’ble Supreme Court has held in paragraphs 10, 11 and 13 as under: “10. Mr. S. Nagamuthu, learned Senior Counsel, appearing on behalf of the accused/respondent no.1, defended the judgment of the First Appellate Court, as also of the High Court. His submission as that the complainant/petitioner did not fulfil the requirement of being “a holder in due course”, as no evidence was produced by the petitioner to show that the said cheques 9 were issued in discharge of a legally enforceable debt and hence, he could not be a person who had, for due consideration, become the possessor of the cheques. He referred to the depositions made before the Trial Court, in support of his submission that the presumption under Section 139 read with Section 118 of the 1881 Act was not applicable in the case of the complainant/petitioner because such presumption stood effectively rebutted. He relied on the judgment of this Court in the cases:- (i) Basalingappa -vs- Mudibasappa [(2019) 5 SCC 418], (ii) K. Subramani -vs- K. Damodara Naidu [(2015) 1 SCC 99], (iii) Reverend Mother Marykutty -vs- Reni C. Kottaram and Another [(2013) 1 SCC 327] and (iv) Krishna Janardhan Bhat v. Dattatraya G. Hegde [(2008) 4 SCC 54]. 11. He further argued that, in order to invoke the presumption under the aforesaid two provisions of 1881 Act, the jurisdictional facts had to be established by complainant/petitioner and any lacuna in the evidence of the complainant would strike at the root of the complaint of this nature. He relied on the judgment in the case of John K. Abraham -vs- Simon C. Abraham and Another [(2014) 2 SCC 236]. 13. As the impugned decision is primarily based on considering the evidences produced by the respective parties, we do not consider it necessary to individually deal with the ratio of the respective decisions relied on by the learned senior counsel representing the parties. The principles emerging from these authorities have been applied in the judgment of the High Court. In this judgment also, we have taken into consideration the positions of opinion that there is no perversity in the finding of the High Court, and prior to that, in the finding of the First Appellate Court, that went against the complainant/petitioner. It cannot be held that these findings were perverse, or based on no evidence. No point of law is involved in this set of cases, that would warrant our interference. We accordingly dismiss these petitions.” 13. Considering the fact and law on the subject, it is quite vivid that the learned trial Court has not committed any illegality in recording its finding of fact that cheque was not given towards any debt or liability. It is well settled position of law that if one view is in favour of the accused acquitting him from the charges then the appellate Court should not normally disturb the finding of acquittal unless so cogent or vital materials have been ignored by the trial Court or there is a clear chance of conviction of the accused which is not the situation in the 10 present case as there is no perverse finding of facts or law. The trial Court has examined the evidence in detail and the opinion of the trial Court goes against the complainant. Considering the evidence and material, I do not find any perversity in the finding of the trial Court or in the impugned order warranting interference by this Court in the acquittal appeal. 14. Asccordingly, the acquittal appeal being devoid of merit deserves to be dismissed and it is hereby dismissed. Sd/- (Narendra Kumar Vyas) Judge Bhumika