1 2025:CGHC:12228 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 684 of 2024 Order Reserved on : 05.12.2024 Order Delivered on : 12.03.2025  Nanku Ogre S/o Panchram Ogre Aged About 31 Years R/o Chakrway, Police Station Simga, District Baloda Bazar Bhatapara Chhattisgarh ... Appellant versus  Shravan Chauhan S/o Devendra Chauhan Aged About 42 Years Proprietor Chauhan Rewinding Megha Motor Pump And Borwales, Bhatapara, Nearby Dhan Mandi, Bhatapara Sahar, District Baloda Bazar Bhatapara Chhattisgarh ... Respondent For Appellant : Mr. Anil Gulati, Advocate For Respondent : Mr. Manoj Kumar Sinha, 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 05.02.2019 (Annexure A/1) passed by the learned Judicial Magistrate First Class Simga, District - Balodabazar-Bhatapara (C.G.) in Criminal Case No. J-173/2017 by which the respondent has been acquitted from the offence punishable under Section 138 of Negotiable Instrument Act, 1881. 2. Brief facts of the case are that the complainant and respondent are MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.03.12 12:16:21 +0530 2 having cordial relationship. The complainant for necessity of bore has requested the accused who is running Chauhan Rewinding Mega Motor Pump and Borewales Bhatapara for providing services and supply of machineries. Accordingly, the complainant has deposited Rs. 2,05,000/- with the accused. Later on after two months the accused has shown his inability to perform the service and supply the machinery, therefore, the accused has given a cheque bearing No. 259771 dated 10.02.2017 drawn at Andhra Bank, Branch - Bhatapara for Rs. 2,05,000/-. The said cheque was deposited in the account maintained by the complainant at Allahabad Bank on 13.02.2017. The said cheque was returned on 22.02.2017 with endorsement “dishonored due to insufficient fund” vide memo dated 22.02.2017. The complainant sent a legal notice on 23.03.2017 to the accused which was received by him on 25.03.2017. Neither the amount was paid nor respondent replied to the said notice, therefore, the complainant has filed the complaint on 10.04.2017 under Section 138 of N.I. Act before the learned Judicial Magistrate First Class Bhatapara (C.G.). 3. The complainant to prove his case has examined himself by way of an affidavit as provided under Section 145 of N.I. Act and has exhibited documents i.e. cheque dated 10.02.2017 (Exhibit P/1), Cheque Deposit Memo (Exhibit P/2), Cheque forwarding memo (Exhibit P/3) notice dated 23.03.2017 (Exhibit P/4), Postal Receipt (Exhibit P/5), Certificate from the Postal Department (Exhibit P/6). The accused has examined himself under Section 313 of Cr.P.C. wherein he has stated that the cheque has not been issued towards any liability and no notice was received by him. He has 3 also stated that his signature is not in the cheque. The accused has also examined witnesses namely Indraneel Mukherjee (DW- 1), Narendra Nath Mahapatra (DW-2) who are from the banks and Sant Kumar Constable (DW-3). The accused has exhibited Personal Data regarding opening of Bank Account (Exhibit D/1), Bank Statement (Exhibit D/2) and Report under Section 155 of Cr.P.C. (Exhibit D/3). The complainant in his examination-in-chief by way of an affidavit has reiterated the contentions made in the complaint. The said witness in paragraph 17 of the evidence has stated that he is aware that Rs. 2,05,000/- cannot be given without any documentation and no documentation with regard to this payment was done between the complainant and the accused. The witness has stated that he has given Rs. 2,05,000/- to the accused and in security he has given this cheque (Exhibit P/1). He has also admitted that when the accused has not done the bore work still he has not given any notice to the accused. 4. On the basis of evidence and material on record, the learned trial Court has recorded its finding that the complainant has not proved that he has given money to the accused and cheque was given towards liability. He has also recorded a finding that the signature of the accused available in the cheque does not tally with the Personal Data (Exhibit D/1). Accordingly, by impugned order it has dismissed the complaint and acquitted the accused. Being aggrieved with this order the complainant has filed this acquittal appeal. 5. Learned counsel for the appellant would submit that the order of learned trial Court is bad in law as well on facts. He would submit 4 that the learned trial Court failed to appreciate the cheque given by the respondent to the appellant dishonored due to insufficient balance in the account of the respondent which was given towards liability. He would further submit that the learned trial Court has committed illegality in relying upon the statement of Mr. Indraneel Mukherjee (DW-1) who has stated that signature of the accused in the cheque is not tallied without any opinion from handwriting expert, as such, the finding of the trial Court is illegal and deserves to be set aside. He would further submit that the learned trial Court has unnecessarily drawn influence in favour of the accused by not examining the witnesses namely his wife and Vijay Ogre and also not examining the witness namely Laxminarayan with whom he has gone for demanding the money from the accused. As such, the finding is perverse and deserves to be set aside by this Court. 6. Per contra learned counsel for the respondent would submit that in the statement of Indraneel Mukherjee (DW-1) who is the Branch Manager of Andhra Bank situated at Bhatapara has deposed that the signature which was present in Exhibit P/1 was not the signature of the respondent. He would further submit that DW-3 Sant Kumar has stated that the complainant has mentioned that he has given Rs. 2,05,000/- to the accused in front of Vijay Angare and his wife and this fact has not been mentioned in exhibit D/3 Police Report under Section 155 of Cr.P.C.. He would further submit that the complainant has not examined the witnesses in whose presence he has given the money to prove the transaction between the parties, as such it has rightly recorded its finding that the complainant failed to draw presumption in his favour, therefore, 5 dismissal of complaint is legal, justified which does not warrant interference by this Court and would pray for dismissal of the appeal. 7. I have heard learned counsel for the parties and perused the record. 8. Considering the rival submission of the parties, the point emerged for determination by this Court is: “Whether the finding recorded by the learned trial Court that the complainant has not proved his case beyond reasonable doubt is legal and justified?” To appreciate this point, this Court has considered the evidence on record. Complainant in his evidence has stated that he has given money in cash for supply of bore machineries after selling of the paddy for Rs. 1,10,000/- and rest of the amount were collected after selling 30 dismil of his land. The complainant has denied that Nikhil Soni has given this cheque from his shop. He has admitted that the accused has given the cheque towards security for the money which he has given to the accused. The complainant has stated that cheque was signed and written by the accused which clearly establishes that cheque was given towards debt or liability. The record of the case would further demonstrate that the accused has not rebutted the fact that complainant has given him money, as such the cheque which is alleged to have been given as security has become cheque for liability after the period is over which is 2 or 3 days after giving it as machines were required to be supplied within 2 or 3 days. Thus, the finding of the trial Court that the cheque was not towards any liability suffers from perversity. 6 The accused has taken the stand that the signature shown in the cheque is not of accused and to substantiate the submission, the Bank Manager was examined who is not expert as defined under Section 45 of the Evidence Act, as such the trial Court has committed illegality in relying on the evidence of Bank Manager Indraneel Mukherjee. 9. Similarly, the accused to question the financial position of the complainant has examined Narendra Nath Mahapatra (DW-2) who has stated that in the bank account the complainant never keeps amount exceeding 20,000-25,000/-. This evidence does not give any assistance to the accused, as the complainant himself stated that he has collected the fund by selling paddy and some portion of his land. Further the accused has examined Sant Kumar (DW-3) who has exhibited report under Section 155 of Cr.P.C. and has stated that the complainant has never mentioned about payment of Rs. 2,05,000/- to the accused before his wife and other person. This statement is no relevancy as for attracting the offence under Section 138 of Negotiable Instruments Act, 1881 only the necessary ingredients i.e. cheque should have been given towards liability, despite service of statutory notice as provided under Section 138 of N.I. Act, the accused has not paid the cheque amount to the complainant then the presumption would be drawn in favour of the holder of the cheque unless rebutted by the accused. It is pertinent to mention here that the accused has not given reply to the registered notice dated 23.03.2017 which was delivered to the accused on 25.03.2017. Thus, it is quite vivid that the accused is unable to rebut the presumption by leading 7 evidence or material placed on record. The Hon’ble Supreme Court in case of Dattatraya vs. Sharnappa reported in 2024 (8) SCC 573 has held in paragraphs 27 & 28 as under:- “27. A comprehensive reference to the Sections 118, 139 and 140 of the NI Act 1881 gives birth to a deemed fiction which was also articulated by this Court in K.N. Beena v. Muniyappan and Another as follows: “Under section 118, unless the contrary was proved, it is to be presumed that the negotiable instrument (including a cheque) had been made or drawn for consideration. Under section 139 the court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus, in complaints under section 138, the court has to presume that the cheque had been issued for a debtor’s liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. The Supreme Court in the 9 (2001) 8 SCC 458. case of Hiten P. Dalal v. Bratindranath Banerjee has also taken an identical view.” 28. Furthermore, on the aspect of adducing evidence for rebuttal of the aforesaid statutory presumption, it is pertinent to cumulatively read the decisions of this Court in Rangappa (supra) and Rajesh Jain (supra) which would go on to clarify that accused can undoubtedly place reliance on the materials adduced by the complainant, which would include not only the complainant’s version in the original complaint, but also the case in the legal or demand notice, complainant’s case at the trial, as also the plea of the accused in the reply notice, his Section 313 CrPC 1973 statement or at the trial as to the circumstances under which the promissory note or cheque was executed. The accused ought not to adduce any further or new evidence from his end in said circumstances to rebut the concerned statutory presumption.” 10. In the present case, the accused has not examined himself to rebut the presumption that he has not received any money from the complainant only examined himself under Section 313 of Cr.P.C. which cannot be said to be rebuttal to the presumption drawn in favour of the holder of the cheque as the statement under Section 313 of Cr.P.C. only explains the circumstances against the accused not the rebuttal of the presumption. In addition to this the 8 accused has also not given reply to the notice, but has taken the defense that notice was not served upon him whereas, the notice was sent on registered notice in the address given in the cause title and in the description of charge memo and even in the notice issued by this Court, the address has been mentioned in the cause title is similar to the address mentioned in the notice as well as in the complaint. Thus, as per Section 27 of the General Clause Act the presumption should be drawn that notice has been served upon the accused. This issue regarding non-examination of accused himself except Section 313 of Cr.P.C., no reply to the statutory notice has come up for consideration before the Hon’ble Supreme Court in case of Sumeti Vij vs. M/s Paramount Tech Fab Industries reported in 2022 (15) SCC 689, wherein the Hon’ble Supreme Court has held in paragraphs 18 to 20 as under: “18. Thereafter, two separate legal notices were served by the complainant which were duly received by the appellant and even after receiving the said notices, the appellant neither responded to the notices nor made any payment within the statutory period of fifteen days and only thereafter, two separate complaints were filed by the complainant under Section 138 of the Act against the appellant accused. 19. There was no response by the appellant at any stage either when the cheques were issued, or after the presentation to its banker, or when the same were dishonoured, or after the legal notices were served informing the appellant that both the cheques on being presented to its banker were returned with a note that it could not be honoured because of “insufficient funds”. 20. That apart, when the complainant exhibited all these documents in support of his complaints and recorded the statement of three witnesses in support thereof, the appellant has recorded her statement under Section 313 of the Code, but failed to record evidence to disprove or rebut the presumption in support of her defence available under Section 139 of the Act. The statement of the accused recorded under Section 313 of the Code is not a substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the 9 prosecution case of the accused. Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration.” 11. The evidence produced before the trial Court clearly establishes that the accused has also not rebutted the facts that cheque does not pertain to him, though he made an attempt to rebut the issuance of cheque by saying that cheque does not bear his signature with the assistance of evidence of bank manager. This cannot be termed as rebuttal of presumption drawn in favour of the complainant merely on the self serving statement and the statement of Branch Manager who is not expert of the subject as per Section 45 of the Indian Evidence Act, as such the presumption should have been drawn in favour of the complainant not in favour of the accused. The record of the case would demonstrate that the accused has also not stated that the cheque was not voluntary made over to the payee and in the absence of any evidence with regard to the circumstances in which a cheque was given to the complainant it may reasonably be presumed that cheque was given by the accused. The issue with regard to the signature in the cheque has come up for the consideration before the Hon’ble Supreme Court in case of Bir Singh vs. Mukesh Kumar reported in 2019 (4) SCC 197, the Hon’ble Supreme Court in paragraphs 32 to 38 has held as under: “32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 10 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 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. 35. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 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 any cogent evidence to show that the cheque was not issued in discharge of a debt. 37. The fact that the appellant-complainant might have been an Income Tax practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent-accused should have given or signed blank cheque to the appellant- complainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them. 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 11 charge under Section 138 of the Negotiable Instruments Act.” 12. Considering the fact and law on subject, it is quite vivid that the order of learned trial Court dismissing the complaint suffers from perversity, illegality and non-application of mind which warrants interference by this Court. Accordingly, the impugned judgment is quashed and it is held that accused is liable for conviction for committing the offence under Section 138 of N.I. Act, 1881. But looking to the facts and circumstances of the case, the respondent/accused is sentenced only to fine which is Rs. 50,000/- apart from cheque amount which is Rs. 2,05,000/- payable to the accused. The Rs. 50,000/- fine amount is payable to the complainant as compensation. The cheque amount and compensation shall be deposited in the trial Court within six weeks from today, failing which the accused will undergo sentence of six months Simple Imprisonment. 13. Consequentially, the acquittal appeal is allowed. 14. No order as to cost. Sd/- (Narendra Kumar Vyas) Judge Manish