1 2025:CGHC:8051 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 175 of 2017 Judgment Reserved On: 13.12.2024 Judgment Delivered On: 14 . 02.2025 Mithlesh Mishra S/o Shri Ramdutt Mishra, Aged About 35 Years R/o New Adarsh Nagar, Durg, Tahsil And District- Durg, Chhattisgarh ---Appellant versus Kamlesh Sahu S/o Late Goukaran Sahu, Aged About 26 Years R/o Village Nawagaon, Post-Office Chandanu, Tahsil- Bemetara, District- Durg, Chhattisgarh ---Respondent For Appellant : Mr. Hari Bhagat Agrawal, Senior Advocate assisted by Mr. Akshat Agrawal, 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) & (5) of the Code of Criminal Procedure, against the judgment dated 16.01.2017 passed by learned Judicial Magistrate First Class, Durg (C.G.) in Complaint Case No. 1462/2011, 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 cordial relationship and therefore, the appellant/complainant gave him Rs. 5,00,000/- (Rupees Digitally signed by AMIT PATEL Date: 2025.02.14 16:06:30 +0530 2 Five Lakhs only) through cash to the respondent/accused, which was demanded by him for business purpose in the month of June, 2008 with a condition that he will return the same within 15 days and in discharging of the said liability, the respondent/accused gave cheque to the appellant i.e. Cheque Bearing No. 220578 amounting to Rs. 5,00,000/- (Rupees Five Lakhs only) dated 15.07.2008 of HDFC Bank, Branch- Supela, Bhilai. However, the said cheque being presented by the appellant before his Bank i.e.,Canara Bank, Branch- Durg for encashment, on 10.11.2008, the same stood dishonoured due to insufficient funds in the account of the respondent. Thereafter, the appellant/complainant sent the legal notice on 24.11.2008 (Ex. C/3) through his advocate to the accused/respondent and demanded the cheque amount within 15 days and the same was received by the respondent/accused. The acknowledgment receipt of sending the notice is (Ex.C/5). Despite receiving the notice, the respondent/accused did not pay the cheque amount within the stipulated time period. Therefore, the appellant filed a complaint case under Section 138 of Negotiable Instruments Act (in Short “NI Act”) against the respondent/accused. 3. In support of the complaint, the appellant/complainant examined himself and in his defence, the accused/respondent has examined 02 defence witnesses. 4. Learned trial Court after appreciating the oral and documentary evidence by judgment dated 16.01.2017, acquitted the respondent/accused of the offence under Section 138 of the Negotiable 3 Instruments Act, 1881. Hence, this acquittal filed by the appellant/complainant. 5. Learned counsel for the appellant/complainant submits that the respondent/accused has failed to prove that the cheque was lost and the same was used by the appellant, therefore, the possession of cheque would draw inference that cheque was validly tendered to the appellant by the respondent/accused himself, learned trial Court has failed to see the question answer of examination of accused under Section 313 of Cr.P.C., wherein he denies tending of cheque itself, therefore, it was incumbent on the respondent that the cheque was lost and the same was misused by the appellant, but there is nothing on record to show that the same as proved, therefore the acquittal of the respondent/accused is illegal and liable to be set-aside. He further submits that the defence of no signature in cheque is common in nature, if there is ill will, then it can be made different story by the respondent and due to it only the cheque does not become false because other things play major role like issuance of cheque by bank, possession of cheque with the appellant and filling of amount and mentioning of date is not disproved, then it can be presumed that cheque was validly tendered to the appellant, which is in possession of the appellant legally. Learned trial Court had committed an error in giving the benefit of doubt to the appellant, particularly, when the defence of respondent is neither possible nor sustainable. For all these reasons, the impugned judgment of acquittal is liable to be set aside and the respondent/accused is liable to be held guilty under Section 138 of N.I. Act and punished accordingly. In support of his contention, 4 reliance has been placed on the decision of Hon’ble Apex Court in the matter of Rajesh Jain vs. Ajay Singh, reported in AIR 2023 SC 5018. 6. No one appeared on behalf of the respondent/accused, despite service of notice. 7. I have heard learned counsel for the appellant and perused the material available on record. 8. 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 Bearing No. 220578 amounting to Rs. 5,00,000/- (Rupees Five Lakhs only) dated 15.07.2008 of HDFC Bank, Branch- Supela, Bhilai, and to prove his case, the complainant examined himself and the respondent/accused has examined 02 defence witnesses in support of his case before learned trial Court. The appellant/complainant has filed 06 documents i.e., dishonoured cheque vide Ex.C/1, Bank Memo vide Ex. C/2, Legal Notice vide Ex. C/3, Postal Receipt vide Ex. C/4, acknowledgment of respondent/ accused vide Ex. C/5 and reply of respondent/accused is Ex. C/6. In cross-examination, the appellant/complainant admitted this fact that it is true that the signature on the cheque and the signature on the acknowledgment are different. 9. The respondent/accused has examined in his defence Manish Dev Verma, who is the Assistant Manager, HDFC Bank as DW-1. DW-1 has stated that in his branch, the respondent/accused opened the saving account in which the account’s holder name is Kamlesh Kumar Sahu and his account number is Saving Account No. 07341000005695. At 5 the time of opening the saving account by the respondent/accused, he produced the documents i.e. Pan Card (Ex. D/2) & Driving License (Ex. D/3), in which the respondent/accused admitted his signatures on A to A part in both the documents. 10. Ms. Sunanda Denge (DW-2), who is the handwriting expert, has also stated that signature of the respondent/accused is different/varying in cheque and other admitted documents. 11. The respondent/accused denied his signature on disputed cheque (Ex.C/1), but respondent/accused did not appear before the learned trial Court for cross-examination. His defence witness namely Manish Dev Verma (DW-1) has also stated that Saving Account No. 07341000005695 opened in his branch in the name of Kamlesh Sahu. Appellant/complainant has also filed reply of notice vide Ex. C/6 and in his notice, it was stated by accused/respondent that he gave said cheque to his relative namely Chitrakant Sahu and he misused the said cheque, but the respondent/accused did not examine Chitrakant Sahu to prove his defence. 12. The Hon’ble Apex Court observed in the case of Rajesh Jain (supra) in paras 53 & 54, which reads as under:- “ 53. In his 313 statements, he admits of having taken a loan of Rs 20 lakh and having repaid some interest but in the cross examination of the complainant, a suggestion is made that the accused had no financial dealings with the complainant. Whereas in his 313 statement, the accused states that his cheque book and passbook is kept in his sister in law's house, yet, in the cross examination of Gita Sunar, the accused's sister-in-law, no suggestion is made to that effect. In fact, she has plainly denied that any blank cheque was given to her by her brother-in- 6 law. We find it highly unnatural to presume that the accused would leave his signed cheque leaves and passbook in his sister-in law's house. Even if he did, there is no reason(s) or motive attributed on part of his sister-in-law, for her to collude along with the complainant. The accused has also not explained as to why he has not set up his defense at the earliest point, that is, at the stage of receiving the demand notice, even though he admits having received the demand notice in his 313 statement, yet he makes a suggestion to the complainant in his cross examination that no legal notice had been issued. The theory of 'blank cheque' being misused has been suggested, only to be denied by both, the complainant and Gita Sunar-CW-3. No action has been taken by way of registering a police complaint in order to prosecute the alleged illegal conduct of his blank cheque having been misused by CW-3.” 54. Nothing significant has been elicited in the cross-examination of complainant to raise any suspicion in the case set up by the complainant. Other than some minor inconsistencies, the case of the complainant has been consistent throughout as can be noticed from a perusal of the complainant, demand notice and affidavit evidence. In fact, the signature on the cheque having not been disputed, and the presumption under Section 118 and 139 having taken effect, the complainant's case stood satisfied every ingredient necessary for sustaining a conviction under Section 138. The case of the defense was limited only to the issue as to whether the cheque had been issued in discharge of a debt/liability. The accused having miserably failed to discharge his evidential burden, that fact will have to be taken to be proved by force of the presumption, without requiring anything more from the complainant.” 13. For the sake of convenience, Section 138 of the Negotiable Instruments Act, 1881 is reproduced herein below: 7 138. 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. 14. 14. In the light of above judgment of the Hon’ble Apex Court, in the present case also, the appellant/complainant has also filed disputed cheque vide Ex. C/1, Bank Memo vide Ex. C/2, Legal Notice vide Ex. C/3 and reply of respondent/accused is Ex. C/6. The respondent/accused has only denied all 8 allegations, however, he did not appear before learned trial Court for cross- examination, but the learned trial Court only on this ground that accused/respondent and appellant/complainant had no money transactions between them and also learned trial Court has opined that appellant/ complainant has failed to prove his case beyond reasonable doubt, as such the respondent was exonerated of the said charge before the trial Court. Thus, findings recorded by the learned trial Court are not according to the provisions of Negotiable Instruments Act, 1881. 15. It is clear that presumption under Sections 118 and 139 of Negotiable Instruments Act, 1881 is in favour of the appellant/complainant and the respondent/ accused has failed 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 trial Court are not in accordance with law. As such, the impugned judgment being not sustainable in law is liable to be set aside. 16. Ex consequenti, the appeal is allowed. The impugned Judgment of acquittal dated 16.01.2017 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 fine of Rs. 6,00,000/- (Rupees Six Lakhs Only) as compensation under Section 357(3) of Cr.P.C. 9 to the appellant/complainant within a period of six months from the date of receipt of copy of this judgment. In case of default in payment of fine, he shall undergo simple imprisonment for 02 years. Sd/- (Rajani Dubey) JUDGE AMIT PATEL