1 2025:CGHC:16441 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 768 of 2024 Judgment Reserved on : 10.01.2025 Judgment Delivered on : 08.04.2025  Amit Ajmani S/o Late Shri Naresh Ajmani Aged About 38 Years R/o Hind Cycle Stores, Cinema Line, Rajnandgaon, Tahsil And Distt. Rajnandgaon (C.G.) ... Appellant(s) versus  Rajesh Soni S/o Late Shri Jankilal Soni Aged About 46 Years R/o Uphar Jwelars, Gandhi Chowk Rajnandgaon, Tahsil And Distt. Rajnandgaon (C.G.) Current Address Block B, (First House Of Gate Side), Sun City, Distt. Rajnandgaon (C.G.) 491441 Mo. 7898828099 ... Respondent(s) For Appellant(s) : Ms. M. Asha, Advocate For Respondent(s) : Mr. Ravi Bodhani, Advocate appeared through video conferencing and Ms. Neelam Jaiswani, 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 08.04.2024 (Annexure A/1) passed by the learned Judicial Magistrate First Class Rajnandgaon, District - Rajnandgaon (C.G.) in Criminal Case No. 977/2018 by which the learned Magistrate MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.04.08 19:07:35 +0530 2 has dismissed the complaint filed under Section 138 of Negotiable Instruments Act, 1881 (in short “N.I. Act, 1881”) and acquitted the accused. 2. Brief facts of the case are that: a. The complainant is running business in the name of Hind Cycle Stores Rajnandgaon whereas accused/non-applicant is running business of silver and gold in the name of Uphar Jewelers at Gandhi Chowk, Rajnandgaon and they are known to each other and because of family relationship the accused has taken a loan of Rs. 1,00,000/- from the appellant for his business. It is also the case of the complainant that to discharge his debt and liability the accused has given a cheque bearing No. 102483 dated 30.01.2018 drawn at Oriental Bank of Commerce, Branch Rajnandgaon for Rs. 1,00,000/-. b. The said cheque was deposited in the account maintained by the complainant at Bank of India Branch Rajnandgoan on 31.01.2018. The said cheque was returned on 01.02.2018 with endorsement “account closed” vide memo dated 01.02.2018., thereafter, the appellant had sent a legal notice through his counsel on 19.02.2018 which was refused to receive by the accused on 27.02.2018. As such, the accused neither paid the amount nor replied to the said notice, therefore, he has filed a complaint case under Section 138 of N.I. Act, 1881 against the accused before the learned Judicial Magistrate First Class Rajnandgaon, District - Rajnandgaon (C.G.). 3. The complainant to prove his case has examined himself by way 3 of an affidavit as provided under Section 145 of N.I. Act, 1881 and has exhibited documents i.e. Cheque bearing no. 10248 dated 30.01.2018 (Exhibit P/1), Cheque Return Memo (Exhibit P/2), Notice dated 19.02.2018 (Exhibit P/3), Track Consignment (Exhibit P/4) and Closed Envelop with Acknowledgment (Exhibit P/5) in support of his complaint. The accused has not examined any witnesses, but he has examined under Section 313 of Cr.P.C. wherein he has stated that he has neither taken any loan, put any signature in the cheque nor he has received any notice. 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, as such cheque was given towards debt or liability. Accordingly, by impugned order the trial Court 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 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 has committed material irregularities by acquitting the respondent because the non applicant has not only committed the offence under Section 138 of N.I. Act, 1881 but cheated the complainant by issuing the questioned cheque though he was aware that account is closed by the accused. He would further submit that learned trial court has failed to see that the accused has taken loan of Rs. 1,00,000/- from the appellant and 4 for the payment of loan amount he has given this cheque to the appellant. Thus, it is quite vivid that the cheque was given towards debt or liability, as such, the trial Court should have convicted the accused. He would further submit that the learned trial Court has committed illegality in dismissing the complaint on the count that the cheque forwarding memo does not bear any seal or signature of the bank officers to fall within the ambit of banking records as per Section 146 of the N.I. Act, 1881 and would pray for allowing the appeal. 6. Per contra learned counsel for the respondent would submit that the complainant has not placed any record to demonstrate that the said cheque was given by the accused towards any debt or liability. He would further submit that the cheque was issued in the name of Hind Cycle Stores whereas complaint has not been filed by the Hind Cycle Stores, even no documents have been placed on record to demonstrate that the complainant is the authorized person to file the complaint. He would further submit that the learned JMFC was justified in dismissing the complaint on the count that the cheque forwarding memo does not bear any seal of the bank or signature of the bank officer to fall within the ambit of Section 146 of the N.I. Act, 1881 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 submissions of the parties, the points emerged for determination by this Court are: 5 I. Whether the dismissal of the complaint on the count of non-submission of any authorization from the firm to file the complaint vitiates the entire trial? II. Whether the finding recorded by the trial Court that the complainant has not given any notice to attract Section 138 of the N.I. Act, 1881 is legal, justified or suffers from perversity? III. Whether the trial Court was justified in dismissing the complaint by not relying upon the cheque returning memo as it does not bear seal and signature of the bank official to attract Section 146 of the N.I. Act, 1881? Point No. I: 9. To appreciate point No. I framed by this Court, it is expedient for this Court to go through the evidence brought on record. The complainant has categorically stated that he is running the business in the name and style of Hind Cycle Stores and no cross- examination on this point was done by the accused. Even in the statement recorded under Section 313 of Cr.P.C., no averments have been made to deny that the complainant is not the authorized the person to lodge a complaint. Thus, there was some material on record to suggest that the complainant is the authorized person. Since there was some material to suggest that complainant is the authorized person, it is expedient for this Court to grant opportunity to the complainant to place on record the authorization or documents to suggest that he is competent enough to file a complaint under Section 138 of N.I. Act, 1881. Thus, the dismissal of the complaint on this point is not justified and accordingly, the finding of the trial Court that in absence of any authorization letter 6 from Hind Cycle Stores, complaint is liable to be dismissed deserves to be quashed, accordingly, it is quashed. Point No. II: 10. To appreciate point No. II framed by this Court, it is expedient for this Court to consider the evidence placed on record before the trial Court. The learned trial Court while recording its finding on issue No. 5 framed by the trial Court whether the complainant has given notice within 30 days to the accused demanding amount of cheque from him, has recorded its finding that the complainant despite knowledge about the new address has sent a legal notice on the old address of the accused which was returned back wherein the track consignment it has been mentioned that item delivered to PAR. From the envelop of notice (Exhibit P/5), it is quite vivid that the notice was returned with endorsement not claimed. In the track consignment (Exhibit P/4) it has been mentioned that “item delivered to : PAR” means the package has reached its final destination and has been handed over to the designated recipient or placed in a secured location like mail box, as such, it does not mean that consignment i.e. registered notice has been delivered to the accused. As per the prevailing practice in the postal department delivered to PAR means it reached to its final destination by handing over to the designated recipient i.e. the agency who has been authorized to receive the consignment if it has not been delivered to addressee. Thus, the learned trial Court has committed illegality in recording a finding that there is contradiction in track consignment or in the envelop annexed with 7 the complaint. Even the track consignment clearly indicates that the item was booked on 19.02.2018 and attempts were made to deliver on 19.02.2018, 27.02.2018 and 28.02.2018. Thereafter, it has been delivered to PAR on 28.02.2018. From the evidence of the complainant, it is quite vivid that complainant has stated that accused is neighbor and he was residing there for last 40 years and presently business at Delhi Darwaza, Kamti Line Rajnandgaon and the notice was sent to the address of accused on Gandhi Chowk. The notice was sent on 27.02.2018 when the accused was residing at Gandhi Chowk and subsequently he has left that place. The accused has nowhere stated in his statement or no cross-examination was done by the accused to rebut the fact that when notice was given to the accused he was not residing at Gandhi Chowk which is required to be proved by the accused to overcome for alleged non-compliance of Section 138 of N.I. Act, 1881. Thus, in absence of any evidence regarding change of address by the accused at the time of issuance of notice, the dismissal of the complaint on the count that no notice was served upon the address of the accused deserves to be set aside by this Court, accordingly, this finding is set aside. Thus, the finding on point No. II is answered in favour of the appellant. Point No. III: 11. To appreciate the point No. III framed by this Court, it is expedient for this Court to go through the provisions of Section 146 of the N.I. Act, 1881, which are reproduced below: “Section 146 of the N.I. Act, 1881: 8 “146. Bank’s slip prima facie evidence of certain facts.—The Court shall, in respect of every proceeding under this Chapter, on production of Bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.” 12. The learned trial Court has not given any finding whether the cheque was given towards debt or liability or as security which is paramount consideration for the trial Court while dealing with the cases relating to commission of offence under Section 138 of N.I. Act, 1881, therefore, without any such finding merely due to no seal and signature of cheque return forwarding memo by the bank, the finding of the trial Court that the complainant has not proved the case against the accused is misconceived. Even otherwise, the purpose of cheque return memo is to give the information of holder of the cheque that his cheque on presentation could not be encashed due to various reasons as mentioned in the cheque return memo. Even as per Section 146 of N.I. Act, 1881, the cheque return on presentation presumed the fact of dishonor of cheque unless and until such fact is disapproved. It is pertinent to mention here that neither Section 138 nor 146 of the N.I. Act, 1881 prescribed any particular form of cheque return memo, it is nothing but a mere information given by the due holder of a cheque that cheque has been returned as unpaid. If the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque return memo as invalid or illegal. The cheque return memo is not document which is required to be covered under Bankers Book (Evidence Act), 1891 if there is any infirmity in the cheque return memo, it does not render entire trial 9 under Section 138 of N.I. Act, 1881 as nullity. The Hon’ble High Court of Delhi in case of Guneet Bhasin Vs. State of NCT of Delhi & Anr. & Ors. In CRL.M.C. 4100/2022 & CRL.M.A. 16919/2022(Stay) has taken same view. 13. High Court of Allahabad in case of Mohd. Yunus Malik Vs. State of U.P. and Another in application under Section 482 No. 41434 of 2022 in Neutral Citation no. 2023:AHC:140834 relying upon the judgment of Delhi High Court in case of Guneet Bhasin Vs. State of NCT of Delhi and Others in paragraph 13 has held as under: “From perusal of the same, it is apparently clear that if the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque as invalid or illegal. Further, if there is any infirmity in the cheque or letter,it does not render entire trial under Section 138 of Act, 1881 as nullity.” 14. The High Court of Madras in case of India Cements Investments Services Limited Vs. T. P. Nallusamy in Crl. A. No. 13 of 2014 Neutral Citation No. 2017(1) MLJ(Crl)689 in paragraph 56 reads as under: “56. A perusal of the Judgment of the First Appellate Court in C. A. No. 1 of 2013 dated 08.11.2013 shows that the First Appellate Court had observed at paragraph 10 that in Ex. P7 -Cheque, it was written as ‘21.1.2000’ and the last ‘0’ was corrected as ‘8’ mention of on what date they were presented for collection. Moreover, the First Appellate Court went on to add that to prove the written memos filed, the HDFC Bank Manager was not examined to show how much amount was available in Respondent/Accused Account. In this connection, though a stand is taken on behalf of the Appellant/Complainant that as per Section 146 of the Negotiable Instruments Act, the Manager of the Bank need not be examined to speak about the written of three cheques etc., this Court is of the considered opinion that the Appellant/Complainant ought to examine the concerned Bank Manager to substantiate his version of the case, In fact, the evidence of the Bank Manager in favour of the Appellant/Complainant will strengthen its case.” 10 15. Considering the fact and law on the subject, it is quite vivid that the learned trial Court has committed illegality in not recording its finding that cheque was given towards any debt or liability, further committed illegality in recording a finding that there is non- compliance of the Section 138(b) of N.I. Act, 1881 by not serving of notice to the accused and has also committed illegality in dismissing the complaint on the count that cheque forwarding memo does not bear the seal and signature of bank official, as such presumption under Section 138 of N.I. Act, 1881 cannot be raised, are misconceived and deserves to be set aside, and accordingly they are quashed. 16. Consequentially, the matter is remitted back to the trial Court only to decide the case afresh considering the subsequent effect of change of address after notice given by the accused, to prove that cheque was presented before the bank and it has been dishonored due to “account closed”, whether cheque was given towards debt or liability afresh without being influenced from observation made by this Court on the basis of evidence subsequently recorded and the complainant is also allowed to examine the officer of the bank alongwith records maintained in the bank including physical, computer generated record duly authenticated by the officer of the bank who is well aware with the affairs of dishonor of the cheques of the bank. 17. Consequentially, the appeal is partly allowed and the matter is remitted back to the trial Court for deciding the case as per the directions given by this Court in forgoing paragraphs. Since the 11 parties have already appeared before this Court, no fresh notice is required to be issued to the parties. The complainant and accused shall appear before the concerning trial Court on 09.05.2025 and thereafter, trial Court will make endeavor to complete the trial within 9 months from their first appearance i.e. 09.05.2025. Sd/- (Narendra Kumar Vyas) Judge Manish