1 2025:CGHC:6058 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 170 of 2017 Judgment Reserved On: 29.11.2024 Judgment Delivered On: 03.02.2025 Narendra Kumar Jain S/o Komalchand Jain Aged About 38 Years R/o House No. B/32, Arya Nagar, Durg Police Station - Mohan Nagar, Durg Tahsil And District, Durg ,Chhattisgarh --- Appellant versus Ramvilas Paswan S/o Paltu Paswan Aged About 40 Years R/o House No. 7/kh, Nihal Mohalla, New Kosa Nagar, Near Samarth Auto Bhilai, Thana Supela, District Durg, Chhattisgarh., Chhattisgarh --- Respondent/Accused For Appellant Mr. Ali Afzal Mirza, Advocate. For Respondent/Accused None present. H on'ble Smt. Justice Rajani Dubey C A V Judgment 1. This present acquittal appeal is preferred under Section 378 (4) of the Code of Criminal Procedure, against the judgment dated 20.03.2017 passed by learned Judicial Magistrate First Class, Durg (C.G.) in Complaint Case No. 8541/2015, whereby the respondent /accused was acquitted of the charge under Section 138 of Negotiable Instruments Act, 1881. 2. The averments made in the complaint, in brief, are that the appellant/ complainant and the respondent/accused have old acquaintance and therefore, the appellant/complainant gave him Rs. 50,000 on 2 17.11.2010 through bearing Cheque No. 518682 of State Bank of India, Malviya Nagar Branch, Durg and Rs. 50,000/- on 08.03.2013 through Cheque Bearing No. 116768 of HDFC Bank, Branch- Station Road Durg and in discharge of the said liability, the respondent gave cheque to the appellant i.e. Cheque Bearing No.001202 amounting to Rs. 1,00,000/- (Rupees One Lakh only) dated 11.07.2015 of Axis Bank Ltd, Branch-Nehru Nagar, Bhilai. However, the said cheque being presented by the appellant before his Bank i.e.,Canara Bank, Branch- Durg for encashment, the same stood dishonoured due to insufficient fund in the account of the respondent and intimation to this effect was sent to the appellant by Canara Bank. Thereafter, the appellant/complainant, through his advocate, sent the legal notice (Ex. P/6) to the accused/respondent and demanded the cheque amount within 15 days. The registry receipt of sending the notice is (Ex. P/8), but even thereafter the respondent did not return the aforesaid amount to the appellant. Therefore, the appellant filed a complaint case under Section 138 of Negotiable Instruments Act (in Short “NI Act”) against the respondent. 3. The Trial Court considering the evidence of the respective parties by the impugned judgment dated 20.03.2017 acquitted the respondent/ accused of the charge. 4. Learned counsel for the appellant/complainant submits that the impugned judgment passed by learned Trial Court is illegal, bad-in-law and not sustainable in the eyes of law and liable to be set aside. Learned Trial Court did not appreciate the oral and documentary evidence properly and gave wrong findings. Learned Trial Court misapplied the provisions of Section 138 of N.I. Act and also did not 3 appreciate this fact that though the respondent/accused has denied issuance of cheque in question or execution of promissory note, but both these documents bear in signature and the defence has utterly failed to establish as to how signature of the accused was there on these documents. He next argued that learned Trial Court ought to have seen that it has also been proved that the cheque issued by the respondent/accused, on being presented before the concerned Bank stood dishonoured with an endorsement “account has been closed by the respondent/accused”, which raises a strong presumption against the respondent/accused, in particular when she has denied to have issued any such cheque or any transaction between himself and the complainant whereas the evidence on record categorically falsify the version of the respondent/accused. Learned Trial Court did not appreciate this fact that complainant/appellant proved his case by oral and documentary evidence and clearly proved the guilt of the respondent/accused, but the learned Trial Court acquitted him of the charge on the technical grounds. For all these reasons, the impugned judgment of acquittal is liable to be set aside and the respondent/acused is liable to be held guilty under Section 138 of N.I. Act and punished accordingly. Reliance has been placed on the decisions of the Hon’ble Apex Court in the matter of Bir Singh vs. Mukesh Kumar, reported in (2019) 4 SCC 197, Kalamani Tex and Another vs. P. Balasubramanian, reported in (2021) 5 SCC 283 & P. Rasiya vs. Abdul Nazeer and another, reported in 2022 SCC OnLine SC 1131 and on the decisions of this Court in the matters of Sunil Sahu vs. Ramesh Kumar Mishra, passed in Acquittal Appeal No. 42 4 of 2014 and Pannalal Jain vs. Nohar Singh, passed in Acquittal Appeal No. 03 of 2010. 5. No one appeared on behalf of the respondent/accused, despite service of notice. 6. I have heard learned counsel for the parties and perused the material available on record including the impugned judgment. 7. It is clear from record of learned Trial Court that appellant/complainant filed a complaint case under Section 138 of N.I. Act, 138 against the respondent/accused before the Judicial Magistrate First Class, Durg for dishonouring of Cheque No. 001202 dated 11.07.2015 of Rs. 1,00,000/-(Rupees One Lakh Only), and to prove his case, the complainant examined himself before learned Trial Court and exhibited 08 documents i.e., Promissory Notes vide Ex. P/1 and Ex. P/2, cheque vide Ex. P/3C, Bank Receipt vide Ex. P/4, Memo of Bank vide Ex. P/5, Legal Notice vide Ex. P/6, Postal Receipt vide Ex. P/7 and acknowledgment of respondent vide Ex. P/8. Learned Trial Court gave its findings that the complainant/appellant did not prove his case against the respondent/accused and in the case, if the accused has remained silent, it does not mean that the complainant can take advantage of his weakness. 8. It is clear from statement of accused/respondent in question No. 19 and he admitted this fact that “lu~ 2010 esa eSaus ifjoknh ls :i;s 50]000@&m/kkj fy;k Fkk tks 10 izfr’kr C;kt ij fy;k Fkk] mlh rkjh[k dks ifjoknh us eq>ls nks opu i=ks ij gLrk{kj fy;k Fkk crkSj xkjaVh esjs [kkrs dk pkj psd gLrk{kj;qDr dksjk psd fy;k Fkk 2015 esa esjk ifjoknh ds lkFk dksbZ laO;ogkj ugh gqvk vkSj uk gh 2015 esa eSaus ifjoknh dks psd fn;k 2010 esa jde eSaus fy;k Fkk mls 10 izfr’kr C;kt lfgr okil ykSVk fn;k ijarq tc eSaus dksjk psd okil ekaxk rc ifjoknh us psd okil u dj >wBk ekeyk is’k fd;kA”’’ 9. Thus, it is clear from statement of the respondent/accused that he has admitted his signature in cheques and also admitted this fact that he gave four blank signed cheques to the complainant/appellant. 5 10. For the sake of convenience, Section 138 of the Negotiable Instruments Act, 1881 is reproduced herein below: 138. Dishonour of cheque for insufficiency, etc., of funds in the account.— Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:Provided that nothing contained in this section shall apply unless— (a)the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 11. The Hon’ble Supreme Court in the matter of P. Rasiya (supra) held in para 07 as under :- “7. Feeling aggrieved and dissatisfied with the judgment and orders passed by the Appellate Court affirming the conviction of the accused under Section 138 of N.I. Act, the accused preferred three different Revision Applications before the High Court. By the impugned Common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift uon the accused to 6 prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Compplainant/holder of the cheque, in that case, it is for the accused to prove the contrary. The aforesaid has not been dealt with and considered by the High Court. The High Court has also failed to appreciate that the High Court was exercising the revisional jurisdiction and there were concurrent findings of fact recorded by the courts below. 12. The Hon’ble Supreme Court in the matter of Kalamani Tex (supra) held in para 18 as under :- “18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, 36 12, where this court held that: “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.” 13. In the light of above judgments of Hon’ble Apex Court, it is clear that accused/respondent also admitted his signature on cheques and also admitted this fact that he took debt from the complainant/appellant. However, he stated that he took debt in the year 2010 from the complainant, but accused/respondent neither appeared before learned Trial Court nor did he file any oral and documentary evidence to rebut the presumption under the provision of Negotiable Instruments Act, 1881. It is well settled law that in case of Negotiable Instrument Act, the complainant has only to prove the fact that the cheque in question was issued by the accused in discharge of any debt or liability to the complainant and under Section 139 of the Act, it shall be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 of the Act for discharge, in whole or in part, or any debt or other liability. In the given set of evidence and the facts and circumstances emerging in the case, the findings recorded by the learned 7 Trial Court are not in accordance with law. As such, the impugned judgment being not sustainable in law is liable to be set aside. 14. Ex consequenti, the appeal is allowed. The impugned Judgment of acquittal dated 20.03.2017 passed by learned Trial Court is hereby set aside. The accused/respondent is held guilty under Section 138 of the Negotiable Instruments Act, 1881 and he is sentenced to pay sum of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) as compensation under Section 357(3) of Cr.P.C. to the appellant/ complainant within six months from the date of receipt of copy of this judgment. In case of default in payment of fine, he shall undergo rigorous imprisonment for 02 years. Sd/- (Rajani Dubey) JUDGE AMIT PATEL Digitally signed by AMIT PATEL Date: 2025.02.03 17:03:00 +0530