1 2025:CGHC:14101 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 299 of 2013 Saiyad Faisal Ali S/o Late Shri Abrar Ali Aged About 36 Years R/o Nehru Nagar, Gandhinagar Bilaspur Ps Civil Line Bilaspur Tah. And Distt. Bilaspur C.G. ... Applicant(s) versus Anil Gupta S/o Late Shri Laxmichand Gupta Aged About 53 Years R/o Mungeli Naka Bilaspur Ps Civil Line Bilaspur Tah. And Distt. Bilaspur C.G. ... Non-applicant(s) For Applicant : Mr. Suresh Pandey, Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Order on Board 24.03.2025 1. Heard Mr. Suresh Pandey, learned counsel appearing for the applicant. 2. The present revision petition has been filed by the revisionist with the following prayer:- “It is therefore kindly prayed that may please this Hon’ble Court be kind enough to admit the instant revision and further be pleased to set aside the judgment and findings KUNAL DEWANGAN Digitally signed by KUNAL DEWANGAN 2 of the both the Courts below and further again pleased to acquit the accused by the alleged offence punishable under Section 138 of the negotiable instruments Act, in the interest of justice” 3. The case of the prosecution in brief is that the respondent/ complainant (herein after referred as complainant) had instituted a complaint against the present Revisioner/appellant/accused (herein after referred as accused) punishable under Section 138 of the Negotiable Instruments Act, interalia stating that the accused was well known and having with good relationship with him and on the same account the accused had demanded Rs. 1,00,000/- for his business and thereby the complainant had advanced him the same amount before one Chiranjiv Sharma on 25.02.2006 and the accused had promised to return the same amount within 03 months, and on demand of the said amount, the accused had issued one cheque of the Bank of Baroda bearing No. 0116426 on 05.04.2007, but the same have become dishonoured while presenting the same for the encashment on 06.04.2007, with the remarks of the insufÏcient amount in the same account, regarding which one demand notice on 09.04.2007 were also been sent to the accused but the accused had not returned the amount of the said cheque, thus the complainant had instituted by the complaint, against the accused under the alleged act. 4. On the basis of the complaint, learned trial Court have taken the cognizance and after concluding the trial, whereby the complainant had examined himself (as Complaiant Witness No.1) as well as 3 other witnesses namely Kripal Singh (as Complaiant Witness No.2) and Chiranjiv Sharma (as Complaiant Witness No.3), whereas on the account of the defence witnesses, accused examined himself and the report of the hand writing expert namely Dr. Sunanda Dhenge had been submitted before the learned trial Court. On the basis of the complaint as well as the deposition statement of the complainant and their witnesses, the learned trial Court had held the accused guilty of the alleged offence of Section 138 of the negotiable instruments Acts and thereby imposed the sentenced as mentioned above, against which the appeal by the accused were also preferred, but the same were also got dismissed by afÏrming the judgment and the findings of the trial Court. Hence this petition. 5. Learned counsel for the applicant submits that both trial Court as well as appellate Court have failed to apply their required judicial mind towards the facts and law applicable in the case and have failed to understand the basic ingredients of Section 138 of the Negotiable instruments Act, whereby it has been provided that the cheque must be issued for the discharge of any liability of any debt and under the said provisions debt or other liability means a legal enforceable debt or other liability, but in the instant case, the cheque was issued only for the purpose of security/guaranty to execute the sale deed in the favour of only the complainant by the accused and in order to secure the said commission of the due amount agreed to be paid by the complainant to the accused after the execution of the registered sale deed by one Dr.Jaishankar Mehta in the favour of the complainant, been settled by the present 4 Revisioner, who was under promise to be paid Rs. 1,00,000/- as the commission amount of the same transaction and since the accused had not received the amount agreed with the complainant after the execution of the said sale deed, thus the cheque issued was nowhere said to be given for the discharge of any liability. He further submits that both the Courts’ have also failed to consider that as per the report of the hand writing expert, it was quite clear that the contention of the complainant to advance the loan of Rs.1,00,000/- on 25.02.2006 and whose payment the issuing of the questioned cheque on 05.04.2007, was prove to be false and concocted, as the alleged cheque was said to be issued prior to 6 years of the date of the examination of the cheque i.e. 20.12.2011, and on that basis the cheque have been proved to be issued prior to 2005, as per the signature posted by the accused, but both the Court below have not given due reliance on the same report given by the hand writing expert. He further submits that both the Courts’ have failed to understand that the accused has become successful to rebut the burden of the proof that the questioned cheque has not been issued in the favour of any liability or debt to the complainant by the accused, as per the reply of the demand notice as well as his evidence, then the onus have been turned against the complainant to prove that the questioned cheque was issued in his favour for any liability or debt, but the complainant had not given any explanation on that regard. He further submitted that the applicant has already deposited Rs.50,000/- out of Rs.1,00,000/- awarded by the learned trial Court under Section 357 (3) of CrPC. Therefore, he prays to set 5 aside the judgment and findings of the both the Court below and further again pleased to acquit the accused by the alleged offence. 6. I have perused the case diary and documents appended thereto. 7. From perusal of the impugned judgment, it transpires that the trial Court has found the accused, Faisal Ali, guilty under Section 138 of the Negotiable Instruments Act for issuing a check dated April 5, 2007, for ₹1,00,000/-, which was dishonored by the bank. The accused failed to pay the amount despite notice. The trial Court considers this a criminal act of cheating, which erodes trust in the banking system and causes financial loss. The accused's actions were done with malicious intent, showing no intention of fulfilling his liabilities. The learned trial Court after appreciating the evidence and material available on record, convicted the applicant under Section 138 of N.I. Act and sentenced him to undergo 01 year simple imprisonment with compensation to a tune of Rs. 1,00,000/- (one lakh), in default of payment of amount to further undergo 1 month simple imprisonment. Being aggrieved by the judgment of learned trial Court, the applicant preferred an appeal before the 2nd Additional Judge to the Court of 1st Additional Sessions Judge, Bilaspur who afÏrmed the conviction and sentence as awarded by the trial Court and dismissed the appeal, filed by the applicant. 8. Considering the aforesaid fact and circumstances of the case and the nature of offence levelled against the applicant, I am of the view that the learned appellate Court has not committed any illegality or infirmity in afÏrming the conviction and sentence of the applicant as 6 awarded by the trial Court for offence under Section 138 of the Negotiable Instruments Act, as such, the criminal revision being devoid of merit is liable to be and is hereby dismissed. 9. From perusal of the record, it transpires that the applicant has already deposited Rs. 50,000/- out of Rs. 1,00,000/- as ordered by the learned trial Court and afÏrmed by the appellate Court. Hence, the applicant is directed to pay the remaining compensation amount of Rs. 50,000/- before the Court concerned within a period of two months from today, which shall be paid to the respondent /complainant on making an appropriate application, failing which the applicant shall be taken into custody for serving out the jail sentence as awarded by the learned trial Court. 10. Accordingly, IA No. 2/2025, which is an application for the condonation of delay in paying process fee, stands disposed of. 11. Let a copy of this order and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ramesh Sinha) Chief Justice Kunal 7