2025:JHHC:14226 -1- IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 1737 of 2017 Kanchan Tiwary, son of Late Janki Tiwari being the proprietor of M/s A. K. Associates, R/o Road No. -13, behind Jharkhand State Housing Board, PO and PS- Adityapur, District- Saraikella -Kharsawan ..... Petitioner Versus 1. The State of Jharkhand 2. Rajesh Kumar Singh son of R. N. Singh, resident of M.D. 2/2 Tata Steel Officers Colony, Kurgaon, PO & PS Kunda, Tal Palghar, Disrict- Thane, State- Maharashtra, at present residing at C/o Shailesh Kumar Singh R/o-C/8 ‘B’ Block Pardeshipara, PO & PS- Adityapur, District- East Singhbhum …… Opp. Parties With Cr. Rev. No. 11 of 2018 Rajesh Kumar Singh son of R. N. Singh resident of at C/o Shailesh Kumar Singh, C/8 ‘B’ Block Pardeshi Para, PO & PS- Adityapur, District- East Singhbhum …… Petitioner Versus 1. The State of Jharkhand 2. Kanchan Tiwari, son of Late Janki Tiwary proprietor of M/s A. K. Associates, R/o Road No. -13, Behind Jharkhand State Housing Board, PO and PS- Adityapur, District- Saraikella –Kharsawan... Opp. Parties ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the petitioners: Mr. Jitendra S. Singh, Advocate Mr. Anish Kumar Mishra, Advocate [Cr. Rev. No. 1737 of 2017] Mr. Saurav Shekhar, Advocate Mr. Anurag Kumar, Advocate [Cr. Rev. No. 11 of 2018] For the State : Ms.Vandana Bharti, A. P. P. Mr. Suraj Deo Munda, A. P. P. For the O. P. No.2 :Mr. Saurav Shekhar, Advocate Mr. Anurag Kumar, Advocate [Cr. Rev. No. 1737 of 2017] Mr. Jitendra S. Singh, Advocate Mr. Anish Kumar Mishra, Advocate [Cr. Rev. No. 11 of 2018] C.A.V. on 21.02.2024 Pronounced on 28/04/2025 The both the Criminal Revision Applications i.e. Cr. Rev. No. 1737 of 2017 and Cr. Rev. No. 11 of 2018 are arising out of the common judgment dated 11.09.2017 passed by Sri Radha Krishan, learned Additional Sessions Judge-III, Jamshedpur in Criminal Appeal No. 208 of 2013 and as such, both the cases are being heard together and being disposed of together by this common judgment. 2025:JHHC:14226 -2- 2. The both the Criminal Revision Applications i.e. Cr. Rev. No. 1737 of 2017 and Cr. Rev. No. 11 of 2018 have been filed against the judgment dated 11.09.2017 passed by Sri Radha Krishan, learned Additional Sessions Judge-III, Jamshedpur in Criminal Appeal No. 208 of 2013 by which the learned Appellate Court below has dismissed the appeal with modification in sentence by affirming the judgement of conviction dated 23.07.2013 passed Ms. K. M. Prasad, learned Judicial Magistrate, 1st Class, Jamshedpur in connection with C/1 Case No. 3009 of 2010 by observing that the appellant has already paid and filed the receipt of money deposit of Rs. 8,56,561/- which he has paid to the State Bank of India, RACPC Branch Main Building, Bistupur, Jamshedpur towards the entire outstanding amount of housing loan of Sri Rajesh Kumar Singh i.e. the complainant A/C NO. 30243770220 and on the basis of payment, bank issued no dues certificate on 24.08.2017. However, the sentence passed by the learned Lower Court was hereby reduced to extent that the petitioner (accused) Kanchan Tiwari shall undergo S. I. for a period of three (3) months instead of S.I. of one (01) year and to pay compensation amount of Rs. 4,00,000/- (Rs. Four Lakh Only) for the offence under Section 138 of the N. I. Act, although, vide judgement of conviction and order of sentence dated 23.07.2013 passed in connection with C/1 Case No. 3009 of 2010 by Ms. K. M. Prasad, learned Judicial Magistrate, 1st Class, Jamshedpur, the petitioner-Kanchan Tiwari had been convicted in connection with C/1 Case No. 3009 of 2010 for the offence under Section 138 of the N. I. Act and had been sentenced to undergo S. I. for a period of one (1) year and to pay a sum of Rs. 12,50,000/- as compensation to the complainant-O. P. 2025:JHHC:14226 -3- No. 2. 3. During course of argument, neither learned counsel for the petitioner nor learned counsel for the opposite party no. 2 has pointed out that I. A. No. 5583 of 2018 (Cr. Rev. No. 1737 of 2017) is pending, which has been filed by the petitioner under Rule 159 of the High Court of Jharkhand Rules, 2001 for seeking exemption from surrendering before the learned Court below. 4. From perusal of the records, it transpires that the Co- ordinate Bench (Hon’ble Mr. Justice Rongon Mukhopadhyay) of this Court vide order dated 14.08.2017 has passed interim order in favour of the petitioner –Kanchan Tiwary (Criminal Revision No. 1737 of 2017) by issuing notice to the opposite party no. 2, Rajesh Kumar Singh and has observed that no coercive steps shall be taken against the petitioner in connection with C/1 Case No. 3009 of 2010 pending in the Court of learned Judicial Magistrate, 1st Class, Jamshedpur. 5. As the argument has already been concluded by learned counsels for both the sides and hence, this Court is of the view that I. A. No. 5583 of 2018 can be allowed as both the sides have already argued the case on merit and also on the ground that the petitioner has made some payment during the pendency of the Appeal before the learned Appellate Court below. 6. Hence, the petitioner- Kanchan Tiwary (Cr. Revision No. 1737 of 2017) is exempted from surrendering before the learned Court below so far as this Criminal Revision No. 1737 of 2017 is concerned. Thus, I. A. No. 5583 of 2018 is allowed. 7. The complainant’s (i.e. the O. P. No. 2) case, in brief, is that the accused- Kanchan Tiwary in discharge of his liability 2025:JHHC:14226 -4- created ‘Undertaking’ dated 23.02.2010 executed by the accused towards the complainant issued two cheques both payable on CABUS A/C No. 008905005402 maintained by the accused with ICICI Bank Limited, Jamshedpur, Natraj Mansion, Bistupur Main Road in favour of the complainant, having Cheque No. 566791 dated 30.3.2010 of Rs. 3,00,000/- (Rs. 3.00/- Lakh) and cheque no. 566792 dated 15.04.2010 of Rs. 3,25,000/- (Rs. 3.25/- Lakh) total Rs. 6,25,000/- ( Six Lakh Twenty Five Thousand). It is further case of the complainant that the aforesaid both cheques of the accused on presentation by the complainant for its encashment upon the banker of the accused within its valid period, through its banker, State Bank of India, P.B. Branch, Jamshedpur, have been returned unpaid vide the accused banker's cheque return memo both dated 10.8.2010, which was received by the complainant on 11.08.2010 with the ground "insufficient fund". On the receipt of the Information relating to the bouncing of cheques, the complainant demanded the amount covered by the said cheque from the accused through its counsel vide of demand notice dated 23.08.2010 mailed to the accused by registered post with A/D on 25.08.2010. The aforesaid notice of the demand was received by the accused on 28.8.2010, which is evident from the reply to the notice of demand dated 01.09.2010 sent by the learned counsel for the accused acknowledging the liability thereof, and received by the learned counsel of the complainant on 04.09.2010. In spite of the reply to the notice of demand on 28.08.2010, the accused- Kanchan Tiwary failed to pay the amount covered by the cheques in question to the complainant within the statutory period. Thus, the cheque amount has not been paid by the accused to the complainant within the statutory period. Hence the present case 2025:JHHC:14226 -5- has been filed before the court of law. 8. The complainant-Rajesh Kumar Singh (i.e. the O. P. No. 2) in support of his case has got examined himself as CW-1. 9. The complainant-Rajesh Kumar Singh in support of his case has got marked the following Exhibits, which are as follows:- (i) Ext. 1 to 1/1 are Cheque no. 566791 dated 30.03.2010 of Rs. 3,00,000/- & Cheque no. 566792 dated 15.04.2010 of Rs. 3,25,000/- respectively. (ii) Ext.2 is Undertaking of accused-petitioner dated 23.02.2010, (iii) Ext. 3 is Cheque deposit slips dated 31.03. 2010, (iv) Ext. 3/1 is Cheque return memo dated 10.08. 2010, (v) Ext. 3/2 is Cheque deposit slips dated 14.05. 2010, (vi) Ext. 3/3 is "Cheque return memo dated 10.08. 2010, (i) Ext. 4 is Copy of legal notice dated 23.08. 2010, (ii) Ext. 5 is Postal receipt dated 25.08. 2010 and (iii) Ext: 5/1 is Postal receipt dated 25.08. 2010 (iv) Ext. 6 is reply dated 01.09. 2010 by Advocate Shri S. K. Swain to the Legal Notice. 10. Thereafter the accused-petitioner, Kanchan Tiwari had been examined under Section 313 of the Cr. P. C. by the learned Trial Court below on 30.08.2011 and to which the accused-Kanchan Tiwari denied the circumstances put forth before him. 11. On the other hand, defence had adduced three witnesses in support of his case, who are as follows:- (i) D.W.-1 is Kanchan Tiwari (i.e. the accused himself), (ii) D.W.-2 is Raj Kumar Pandey and (iii) DW-3 is Mukesh Tiwari. 12. However, the petitioner did not adduce any documentary 2025:JHHC:14226 -6- evidence in support of his defence. 13. Thereafter, the learned Trial Court below has passed the judgment of conviction and order of sentence dated 23.07.2013 and however, sentence and compensation have been reduced by the learned Appellate Court. Cr. Revision No. 1737 of 2017 14. Heard Sri Jitendra Shankar Singh, learned counsel for the petitioner-Kanchan Tiwari in Cr. Revision No. 1737 of 2017, (who is opposite party no. 2 in Criminal Revision No. 11 of 2018) and learned counsel for the State and Sri Saurav Shekhar, learned counsel for opposite party no. 2 (who is also petitioner in Criminal Revision No. 11 of 2018). 15. It is submitted by the learned counsel for the petitioner that the impugned judgment dated 11.09.2017 passed by the learned Appellate Court below and judgment and sentence dated 23.07.2013 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur are illegal, arbitrary and not sustainable in law. It is submitted that during the pendency of the appeal preferred by the petitioner, the petitioner has already deposited the amount from time to time in the Housing Loan Account of the complainant Sri Rajesh Kumar Singh (i.e. the O. P. No. 2) in State Bank of India, RACPC Branch, Main Building, Bistupur, Jamshedpur having Account No. 30243770220 amounting to Rs. 8,68,561/- and on the basis of the payment the Bank had issued ‘No Dues Certificate’ on 24.08.2017 to the petitioner for the flat in question. 16. It is submitted that from the aforesaid fact, it is clear that as against the cheque amount of Rs. 6,25,000/- the petitioner has already made payment of Rs. 8,68,561.00. However, the above aspect of the matter has not been taken into consideration by the 2025:JHHC:14226 -7- learned Appellate Court while disposing of the appeal preferred by the petitioner. It is submitted that the petitioner had entered into an agreement for sale on 13.07.2007 with the Complainant -O. P. No. 2 in respect of two room BHK flat measuring 950 square feet situated at 2nd Floor of Janaki Apartment for a total consideration amount of Rs. 9,95,750/- only. For the aforesaid flat the Complainant has taken housing loan from State Bank of India, Bistupur. Jamshedpur. The Complainant paid total amount of Rs.8.95,000/- only out of which Rs. 8.00/- Lakh was paid to the Petitioner directly through State Bank of India and the balance amount of Rs.95,000/- was paid to the petitioner directly by the O. P. No. 2. It is submitted that due to some commercial reasons, the petitioner could not fulfilled his commitments made by the Petitioner through the Agreement for sale dated 13.07.2007 and therefore the petitioner had entered into another agreement for sale on 03.11.2008 for one another three room BHK flats bearing Unit No. 6 on the 1st Floor, measuring 1250 square feet constructed over the same place of land for a consideration amount of Rs. 12,71,550/- and the differential amount was to be paid by the complainant- O. P. No. 2 at the time of handing over the flat. It is submitted that the petitioner again could not fulfill his obligations towards the Purchasers as contained in Agreement dated 03.11.2008 and thereafter, a settlement was entered into between the petitioner and the complainant- O. P. No. 2 whereby the petitioner agreed to make payment of Rs. 13.50,000/- and for which four post dated cheques were issued by the petitioner for loan amount of Rs. 12,50,000/- in the name of Complainant and it, was further agreed that after issuance of, No Objection Certificate from the Bank, the petitioner will handover Rs. 1.00/- lakh in 2025:JHHC:14226 -8- favour of the complainant and the cheque amount of Rs. 12,50,000/- given by the petitioner was to be deposited by the complainant in his loan account for the discharge of the loan availed by the complainant-opposite party no. 2. It is submitted that in the aforesaid circumstances, the petitioner agreed to return the amount received from the purchaser-complainant towards the agreement dated 03.11.2008 alongwith reasonable interest and agreed to make payment of Rs. 13,50,000/- to the complainant out of which petitioner had paid Rs. 12,50,000/- by four cheques in the name of the complainant payable at ICICI Bank, Jamshedpur Branch, and further agreed to make payment of the balance amount of Rs. 1.00/- Lakh to the purchaser in the month of May, 2010 on production of No Dues Certificate issued by the State Bank of India, PB Branch, Bistupur, Jamshedpur. It is submitted that in terms of the said ‘Undertaking’ the petitioner had tendered four cheques having value of Rs.12,50,000/- (Twelve Lakhs Fifty Thousand Only) for the purpose of depositing the said cheque amount towards the satisfaction of the loan availed by the complainant for purchase of the flat. Hence, out of the said four cheques, one cheque having amount of Rs. 3.00 lakhs ( three lakhs) was honoured but, the said cheque amount was not deposited by the complainant in his loan account as agreed and thus, the petitioner had no alternative than to allow the other cheques to be bounced on account of "insufficient fund". It is submitted that during the pendency of the appeal , the petitioner has already deposited a sum of Rs 8,68,561/- as against the cheque amount of Rs.6.25,000/- However, since the petitioner had already paid and filed a receipt of money deposit of Rs. 8,56,561/- which the petitioner has paid to the State Bank of India, RACPC Branch, 2025:JHHC:14226 -9- Main Building, Bistupur, Jamshedpur towards the entire outstanding amount of Housing Loan of Sri Rajesh Kumar Singh having account no.30243770220. It is submitted that the learned court below has failed to appreciate that the entire cheque amount along with interest has already been paid in the loan account of complainant which was availed by the complainant for purchasing the flat as against which the cheques were issued by the petitioner. It is submitted that the learned court below has failed to appreciate that the undertaking given by the petitioner was duly complied with by depositing the amount in the loan account of the complainant and after making payment of the full amount No Dues Certificate has also been issued. It is submitted that the learned court below has failed to appreciate that the petitioner has taken all its efforts to make payment of the entire cheque amount in the loan account of the complainant so that the liability of the complainant be discharged. Thus, the impugned judgment dated 11.09.2017 passed in Criminal Appeal No. 208 of 2013 by Sri Radha Krishan, learned Additional Sessions Judge-III, Jamshedpur may be set aside and thus, the Criminal Revision Application may be allowed. 17. It is further submitted that Criminal Revision No. 11 of 2018 is devoid of merit and not maintainable. It is submitted that the Criminal Revision No. 11 of 2018 is filed by the opposite party no. 2 only to harass the petitioner of Criminal Revision No. 1737 of 2017 and fit to be dismissed. Cr. Revision No. 11 of 2018 18. Heard learned counsel for the petitioner in Cr. Revision No. 11 of 2018, who is opposite party no. 2 in Cr. Revision No. 1737 of 2017 and learned counsel for the State and learned counsel 2025:JHHC:14226 -10- for opposite party no. 2. 19. It is submitted by the learned counsel for the petitioner that the impugned judgment dated 11.09.2017 passed by the learned Appellate Court below is illegal, arbitrary and not sustainable in law. It is submitted that the Learned Appellate Court held that the opposite party no.2 Kanchan Tiwari has been correctly held guilty by the learned Trial Court. However, the learned Appellate Court, however, has illegally reduced the compensation amount. It is submitted that the paragraph 21 of the impugned judgement reveals that during the course of appeal, some amounts were deposited by the opposite party no.2 in lieu of the amount not paid due to the cheques dishonoured, but there have been wrong entries made in the list as a result of which the amount calculated to have been paid during the pendency of the appeal comes to the wrong value. It is submitted that the payment of Rs. 90,000/- is the amount that has been paid earlier to the issuance of cheques dated 30.03.2010 and 15.04.2010 respectively which were subsequently dishonoured on 10.08.2010. Therefore, this amount of Rs. 90,000/- could not have been calculated as the amount paid during the pendency of the appeal, neither could it have been calculated in relation to the dishonoured cheques, issued after such payment was made. It is submitted that amount of Rs. 3,25,000/- has been added to have been paid vide cheque no. 566792 dated 15.04.2010, this has been wrongly enlisted, since this amount is in relation to the cheque, that is the cheque in default, which had bounced due to non-availability of the fund in the account of the accused- O. P. No. 2 -Kanchan Tiwari and for which the complaint case had been filed by the petitioner in the first place. Therefore, this amount had never been paid to the 2025:JHHC:14226 -11- petitioner. It is submitted that the rest of the amount, totalling to Rs. 4,53,561/- has been paid by the accused person before the Learned Appellate Court, but in the absence of the petitioner. The accused-O. P. No. 2 made payment of these amounts without bringing this to the notice of the petitioner (i.e. the complainant), and no application to this effect was filed. The Learned Appellate Court took over the amount, but however, the reference of it was never made in any of the orders of the learned Appellate Court and therefore, the petitioner was always unaware of any such payment being made and which can be seen from the order sheet of the Learned Appellate Court, which has not been produced. It is submitted that therefore, the petitioner never had any opportunity to pose any objection or bring to the notice of the court, the details of the amount that had to be deposited and therefore the amount left over as un- deposited. It is submitted that amount of Rs. 90,000/-, Rs. 3,25,000/- and Rs. 4,00,000/- has remained unpaid, which amounts to total Rs. 8,15,0000/- and to which the accused-petitioner has to pay in accordance with the direction of the Learned Trial Court. Thus, the impugned judgment dated 11.09.2017 passed in Criminal Appeal No. 208 of 2013 by Sri Radha Krishan, learned Additional Sessions Judge-III, Jamshedpur may be set aside to the above extent and the O. P. No. 2, Kanchan Tiwari may be directed to pay Rs. 8,15,000/- to the petitioner and the Criminal Revision Application may be allowed. 20. On the other hand learned counsel for the State has submitted that the impugned judgment passed by the learned Appellate Court below is fit and proper and no interference is required. It is submitted that the learned Appellate Court has taken lenient view by reducing the sentence from SI for one year to S.I. 2025:JHHC:14226 -12- for three (3) months and has also reduced the amount of compensation of Rs. 12,50,000/- to Rs. 4,00,000/-. It is submitted that the complainant-opposite party no. 2 has proved his case by adducing his evidence and getting the documents marked as Ext.-1 to Ext.-6 respectively. Thus, there is no illegality in the impugned judgment passed by the learned Appellate Court below and hence, this Criminal Revision Application may be dismissed. 21. On the other hand, learned counsel for the opposite party no. 2 (i.e. Kanchan Tiwary) has appeared the prayer of the petitioner and submitted that the impugned judgment passed by the learned Appellate Court below is illegal, arbitrary and not sustainable in law. It is submitted that the judgment passed by the learned Appellate Court below is contrary to the material available on record. It is submitted that the learned Trial Court i.e. Judicial Magistrate, 1st Class, Jamshedpur had illegally convicted the O. P. No. 2 for the offence under Section 138 of the N. I. Act and had sentenced him to undergo S. I. for a period of one year and to pay compensation of Rs. 12,50,000/-. The learned counsel for the O. P. No. 2 (i.e Kanchan Tiwari) has adopted the argument made in Cr. Revision No. 1737 of 2017 on behalf of the petitioner (Kanchan Tiwari) in this case also. 22. It transpires from the Lower Court Records that the complaint-petitioner had filed the complaint case C/1 Case No. 3009 of 2010 before the learned Chief Judicial Magistrate, Jamshedpur against M/s A. K. Associates represented by its proprietor Mr. Kanchan Tiwari and also against Mr. Kanchan Tiwari son of Janki Tiwari in his personal capacity as the opposite party nos. 1 and 2 respectively on 25.09.2010 as cheque no. 566791 dated 30.03.2010 of Rs. 3,00,000/- (Rs. 3.00/- Lakh), 2025:JHHC:14226 -13- cheque no. 566792 dated 15.04.2010 of Rs. 3,25,000/- (Rs. 3.25/- Lakh) total amounting to Rs. 6,25,000/- (Rs. 6.25/- Lakh) had bounced on 30.03.2010 and 10.08.2010 and also on 14.05.2010 and 18.10.2010 respectively which had been executed by the opposite party no. 2 for discharging of his liability created vide ‘Undertaking’ dated 23.02.2010 (i.e. Ext-2). It is also stated in the complaint-petitioner that the complainant had sent the legal notice, on 23.08.2010 and mailed on 25.08.2010 to the opposite party no. 2 by Registered Post with A/D on 25.08.2010 and the said notice was received by the opposite party no. 2 on 28.08.2010 in light of the reply dated 01.09.2010 sent by the learned counsel of the opposite party no. 2. The Acknowledgement of notice is received on 28.08.2010. However, the payment was not made and hence, the complaint case was filed. 23. The complainant-petitioner, Rajesh Kumar Singh (Cr. Rev No. 11 of 2018) in support of his case, got examined himself as C.W.-1. 24. It transpires that the complainant-petitioner got marked the following documents as the Exhibits, which are as follows:- (i) Ext-1 & 1/1 are cheques of ICICI Bank bearing its nos. 566791 & 566792 issued on dated 30.04.2010 and 15.04.2010 by the O. P. No.- Kanchan Tiwari, vide Jamshedpur Branch (ii) Ext.2 is signature of the O. P. No. 2 on the copy of Undertaking dated 23.02.2010. (iii) Ext.3, 3/1, 3/2 and 3/3 are cheque return memos dated 30.03.2010, 10.08.2010, 14.05.2020 and 10.08.2010 respectively. (iv) Ext-4 is Legal notice dated 23.08.2010. (v) Ext.- 5 & 5/1 are postal receipts, posted on 23.08.2010 on address of the O. P. No. 2. 2025:JHHC:14226 -14- (vi) Ext.- 6 is reply dated 01.09.2010 on behalf of the O. P. No. 2 to the legal notice. 25. It transpires that the statement of the opposite party no. 2 was recorded under Section 313 of the Cr. P. C. by the learned Court below on 30.08.2011 and to which the opposite party no. 2 denied the circumstances put forth before him. 26. Neither any defence witness was examined nor have any documents had been marked as the Exhibits as defence on behalf of the opposite party no. 2 (i.e. Kanchan Tiwari). 27. Thereafter Ms. K. M. Prasad, then learned Judicial Magistrate, 1st Class, Jamshedpur vide judgement of conviction and order of sentence dated 23.01.2013 had convicted the opposite party no. 2-Kanchan Tiwari for the offence under Section 138 of the N. I. Act in connection with C/1 Case No. 3009 of 2010 and had sentenced him to undergo S. I. for a period of one (1) year and had further directed him to pay a sum of Rs. 12,50,000/- (Rupees Twelve Lac Fifty Thousand Only) by way of compensation to the complainant-petitioner. 28. However, the opposite party no. 2 had preferred Criminal Appeal No. 208 of 2013, which was allowed in part by the learned Additional Sessions Judge-III, Jamshedpur vide judgment dated 11.09.2017 and hence the present Criminal Revision Application has been filed. 29. From scrutinizing the evidence of C.W.-1, Rajesh Kumar Singh i.e. the complainant-petitioner (Cr. Revision No. 11 of 2018), it is evident that the O. P. No. 2-Kanchan Tiwari in discharge of his liability created an Undertaking dated 23.02.2010 executed by him (i.e. the O. P. No. 2) to the complainant - petitioner (Cr. Revision No. 11 of 2018), had issued a cheque no. 2025:JHHC:14226 -15- 566791 dated 30.03.2010 for a sum of Rs. 3,00,000/- and cheque no. 566792 dated 15.04.2010 for a sum of Rs. 3,25,000/- payable on CABUS A/C No. 008905005492 maintained by the O. P. No. 2 with ICICI Bank Ltd. Jamshedpur Branch. The Cheques have been marked as Ext.-I and Ext. -1/1 respectively. The complainant further identified the signature of the opposite party on certified copy of ‘Undertaking’ dated 23.02.2010 marked as Ext.-2. He further proved return memos dated 31.03.2010 and 10.08.2010, 14.05.2010 and 10.08.2010, which were marked as Ext.-3, Ext.- 3/1, Ext.-3/2 and Ext.-3/2 respectively. He further proved the legal notice dated 23.08.2010 and also through the mail dated 25.08.2010 sent through his learned counsel marked as Ext. -4. He further proved postal receipt of notice marked as Ext.- 5 and Ext.- 5/1 respectively and he further proved the reply dated 01.09.2010 to the legal notice marked as Ext.-6, which was sent by the O. P. No. 2. 30. During cross-examination, he stated that A. K. Associates is the builder firm and with whom he had booked one Flat of 950 Sq. Ft. in the year 2007 and he had taken loan from SBI and the Bank had sanctioned loan of Rs. 9,46,000/- and he had directly paid Rs. 95,000/- as margin to the Builder and he got allotment of Flat initially and they was an Agreement for 950 Sq. Ft Flat, but after construction its size was increased to 1265 Sq. Ft as its Balcony was extended and hence he had not taken the said Flat. Thereafter he had entered into another agreement with the Builder for the Flat of Rs. 1250 Sq. Ft, which was valued to the tune of Rs. 12.50 Lakh on increasing price of Flat and he i.e the complainant further handed over Rs. 4.00/- Lakh through his Bank 2025:JHHC:14226 -16- to the A. K. Associates. However, he further stated that in the year 2010, he learnt that neither flat with which he entered into agreement, had been sold earlier to someone by executing registered. However, he does have such papers to prove that the said flat was given to someone by the Registry. In the meantime, there was an agreement between them and as the Complainant had taken the loan from the Bank and he had to repay the loan the amount to the Bank and hence the Builder had handed over four (4) cheques of Rs. 12.50 Lakh to him. Those Four Cheques were for the period between 15.03.2010 to 30.04.2010. He further stated that the first cheque of Rs. 3.00/- Lakh was enchased by him and he had handed over Rs. 3.00/- Lakh to the loan account of the Bank and he can prove this by showing passbook that he had handed over Rs. 3.00/- Lakh to the Bank. However, he also admitted that after giving Undertaking, the Builder had deposited Rs. 90,000/- in his Account and the said Rs. 90,000/- was to be deducted from the said four (4) cheques. He has also denied the suggestion that for not depositing Rs. 3.00/- Lakh in the Bank after encashing Rs. 3.00/- Lakh received through A. K. Associates. 30. Thus from scrutinizing the evidence of CW-1, it is evident that the complainant-petitioner had entered into an agreement with the opposite party no. 2- Kanchan Tiwari twice and he had not handed over the flat in question. The Complainant had taken loan of Rs. 9,46,000/- and had also paid Rs. 95,000/- in cash as the margin money to the Builder in respect of the first proposed flat of 950 Sq. Ft. Later on another agreement was executed between them 2025:JHHC:14226 -17- for 3 BHK Flat of 1250 Sq. Ft, which was valued to tune of Rs. 12.50/- Lakh and thereafter the complainant got paid Rs. 4,00,000/- (Rs. 4.00/- Lakh) from the Bank to A. K. Associates - Kanchan Tiwary. In the meantime, the accused- Kanchan Tiwari has also handed over four (4) cheques of Rs. 12.50/- Lakh (Rs. Twelve Lakh and Fifty Thousand) to the complainant by written Undertaking dated 23.03.2010, which was marked as Ext.-2 before the learned Trial Court. The petitioner has stated that Rs. 90,000/- was to deducted from four (4) cheques issued by the accused- Builder after the Undertaking given by him. Thus, the complainant-petitioner has fully supported his case. 31. So far as the documentary evidence is concerned, Ext.-1 and Ext.-1/1 are the cheque nos. 566791 and 566792 dated 30.03.2010 and 15.04.2010 respectively issued by Kanchan Tiwari as Proprietor to the complainant-petitioner i.e. Rajesh Kumar Singh for a sum of Rs. 6,25,000/-. 32. Ext.- 2 is the Undertaking dated 23.02.2010 executed by Kanchan Tiwari i.e. opposite party no. 2 in favour of the complainant-petitioner stating therein that he is the Proprietor of M/s A. K. Associates and he is engaged in the construction of building of sale and he had entered into an agreement for sale on 13.07.2007 with the purchaser Rajesh Kumar Singh Son of Shri R. N. Singh and Mrs. Alish Singh W/O Shri Rajesh Kumar Singh in respect of two (02) room BHK Flat measuring 950 Sq. Ft. situated at 2nd Floor of Janaki Apartment for consideration amount of Rs. 9,95,750/- (Rupees Nine Lakh Ninety Five Thousand Seven Hundred Fifty) and the Purchaser (i.e. the petitioner) after taking loan from the Bank had paid Rs. 8,95,000/- and he also admitted to 2025:JHHC:14226 -18- have received Rs. 8,95,000/- from the Purchaser i.e. the petitioner and admitted proof of the receiving of Rs. 8,00,000/- in Bank Account of his firm i.e. M/s A. K. Associates through the Bank. He had also admitted that due to some commercial reasons, he could not fulfilled his commitments made by him through the Agreement for sale dated 13.07.2007 and therefore, he had entered into an another Agreement for sale on 03.11.2008 with the aforesaid purchasers for three (03) BHK flats bearing Unit No. 6 on the 1st Floor measuring 1230 Sq. Ft. construction over the same piece of land for consideration amount of Rs. 12,71,550/-. However, he could not fulfil his obligation towards the said agreement dated 03.11.2008 hence, in the said background he is morally and legally obliged to return the amount, which has been received from the purchasers towards agreement referred to above with reasonable interest and thus, he undertakes to make payment an amount of Rs. 13,50,000/- to the purchasers and for which he had issued four post dated cheques total for an amount of Rs. 12,50,000/- in the name of first purchaser Sri Rajesh Kumar Singh i.e. the petitioner and details of same have been given as follows:- S. No Cheque Number Date Amount 1. 566790 15.03.2010 Rs. 3,00,000.00 2. 566791 30.03.2010 Rs. 3,00,000.00 3. 566792 15.04.2010 Rs. 3,25,000.00 4. 566793 30.04.2010 Rs. 3,25,000.00 Total Rs. 12,50,000.00 33. The O. P. No. 2 had given further ‘Undertaking’ to make payment of balance of Rs. 1,00,000/- to the Purchasers i.e. 2025:JHHC:14226 -19- the petitioner and his wife on their production of NOC issued by State Bank of India, Personal Banking Branch, Bistupur, Jamshedpur. 34. Thus, Ext-2 clearly shows that the opposite party no. 2 in his personal capacity as well as in the capacity of Proprietor of M/s A. K. Associates has admitted to make payment of Rs. 12,50,000/- through four cheques including cheque nos. 566791 and 566792 dated 30.03.2010 and 15.04.2010 respectively for a sum of Rs. 6,25,000/- which is the subject matter of the instant Criminal Revision Application and he also admitted to pay further balance amount of Rs. 1,00,000/- on producing NOC from the Bank by the petitioner. Therefore, the learned Appellate Court committed grave illegality by allowing the Criminal Appeal in part. 35. Ext.3, 3/1, 3/2 and 3/3 are cheque return memos dated 3.03.2010, 10.08.2010, 14.05.2020 and 10.08.2010 respectively issued by the ICICI Bank Ltd. Jamshedpur in respect of Cheque No. 566791 and 566792 with endorsement “fund insufficient” which also supported the case of the petitioner. 36. Ext-4 is legal notice dated 23.08.2010 sent by the Advocate of M/s A. K. Associates and Mr. Kanchan Tiwary for payment of due amount of Rs. 3,00,000/- and Rs. 3,25,000/- as Cheque No. 566791 and 566792 for a sum of Rs. 6,25,000/- issued by the opposite party no. 2 to the petitioner had been returned by the Bank with the endorsement “fund insufficient”. 37. Ext.- 5 & 5/1 are the postal receipts dated 23.08.2010. 38. Ext.- 6 is reply dated 01.09.2010 sent by S. K. Swain ( learned Advocate of O. P. No. 2) to Miss Shweta Singh, learned counsel for the complainant-petitioner. 2025:JHHC:14226 -20- 39. From perusal of the Ext.-6, it is evident that the O. P. No. 2 also admitted for having issued cheque no. 566791 dated 30.03.2010 for a sum of Rs. 3,00,000/- and cheque no. 566792 dated 15.04.2010 for a sum of Rs. 3,25,000/- total of Rs. 6.25/- Lakh (Rs. Six Lakhs and Twenty Five Thousand) vide cheques of of ICICI Bank Ltd. Jamshedpur and further stated that due to recession in the market his client faces some financial difficulty and could not arrange the fund in their account and as a result of which, the said cheque was dishonoured on his representation. Thus, the Ext. -6 also shows admission on the part of the O. P. No. 2 for paying Rs. 3,00 Lakhs & Rs. 3.25 Lakhs i.e. total Rs. 6.25 Lakh by Cheque No. 566791 dated 30.03.2010 and Cheque No. 566792 dated 10.04.2010. This Ext.-6 was sent by the learned counsel for the opposite party no. 2 on his admission. 40. The learned counsel for the O. P. No. 2 has further conveyed the Undertaking of his client i.e. the O. P. No. 2 that payment against the aforesaid dishonoured cheque shall be made within 15th October, 2010 ( i.e. 15.10.2010). However, learned counsel for the opposite party no. 2 had also requested for returning of the agreement of two Flats, Allotment Letters and NOC from the Bank mortgaging the flats for settlement of the account. 41. Thus, even from perusal of the reply dated 01.09.2010 marked as Ext.-6, it is evident that it was also further admitted by the learned counsel for opposite party no. 2, Kanchan Tiwari that his client (i.e. the O. P. No. 2) is ready to pay the said liability against the dishonoured cheque within seven days. Thus, Ext.-6 further corroborates and supports the case of the petitioner. 2025:JHHC:14226 -21- 42. However, while being examined under Section 313 of the CrPC on 30.08.2011 before the learned Court below the opposite party no. 2 has given evasive reply. 43. Therefore, the learned Trial Court below had convicted correctly the O. P. No. 2 for the offence under Section 138 of the Cr. P. C. and sentenced him to undergo S. I. for a period of one (1) year and to pay compensation of Rs. 12,50,000/- to the complainant- petitioner. 44. Although, the learned Appellate Court below has upheld the conviction of the O. P. No. 2, Kanchan Tiwari for the offence under Section 138 of the N. I. Act and has partly reversed the findings of the learned Trial Court below, however, the Appellate Court has himself observed that presumption under Section 118 (a) of the N. I. Act is available in favour of the complainant-petitioner. But, in view of the fact that appellant has already paid and filed the receipt of money deposit of Rs. 8,56,561/- which he has paid to the State Bank of India, RACPC Branch Main Building, Bistupur, Jamshedpur towards the entire outstanding amount of housing loan of Sri Rajesh Kumar Singh , A/C No. 30243770220 and on the basis of payment, bank issued no dues certificate on 24.08.2017, the sentence passed by the learned Lower Court is hereby reduced to the extent that the appellant/accused Kanchan Tiwary shall undergo S. I. for three (3) months and to pay compensation amount of Rs. 4,00,000/- (Rs. Four Lakh Only) to the respondent no. 2. 45. It is evident that the petitioner –Kanchan Tiwary in Criminal Revision No. 1737 of 2017 has (i.e. O. P. No. 2 in Cr. Revision No. 11 of 2018) claimed to have made part payment of Rs. 8,68,561/- on different dates as has been mentioned earlier to 2025:JHHC:14226 -22- the State Bank of India, RACPC branch Main Building, Bistupur, Jamshedpur directly instead of paying the amount to the Opposite Party no. 2- Rajesh Kumar Singh (Cr. Revision No. 1737 of 2017). Even the petitioner- Kanchan Tiwari has failed to bring to the notice of payment of Rs. 8,68,561/- to the opposite party no. 2, Rajesh Kumar Singh during pendency of the appeal and hence, the opposite party no. 2 was completely in dark regarding the payment made by the petitioner to the State Bank of India directly. This Court is also surprised by the conduct of the State Bank of India officials for receiving payment directly from the petitioner- Kanchan Tiwary, who was the Builder instead of receiving payment from the opposite party no. 2- Rajesh Kumar Singh. The act of the State Bank of India officials shows that the Bank was hand in glove of the petitioner- Kanchan Tiwary and the petitioner got its flat released from the State Bank of India and the opposite party no. 2 remained in complete dark between the transaction of the petitioner –Kanchan Tiwary and the State Bank of India officials. 46. Since, this is not the proper stage for initiating any action and hence, this Court refrains itself from giving any further findings in respect of the conduct of the State Bank of India Officials. This Court could have proceeded against the State Bank of India Officials also for obtaining payment directly from the Builder i.e. the petitioner- Kanchan Tiwary, who has filed Criminal Revision No. 1737 of 2017 only to deprive the complainant of his legal right against the complainant –opposite party no. 2. 47. The petitioner –Kanchan Tiwari cannot take advantage of his own ground and also in light of the Undertakings given on 23.03.2010, the petitioner –Kanchan Tiwari is bound to pay the 2025:JHHC:14226 -23- amount of Rs. 8.00/- Lakh in question to the O. P. No. 2 -Rajesh Kumar Singh. 48. It has been held in the case of Don Ayengia Versus State of Assam and Another reported in (2016) 3 SCC 1, at para-10 to 15 as follows:- “Para-10:- It is not in dispute that the execution of the promissory note and the endorsement made by the respondent has been satisfactorily proved at the trial. Concurrent findings recorded by the trial court and the first appellate court to that effect conclude the factual part of the controversy. The only question that survives in the above background is whether the cheques issued by the respondent were meant to discharge, in whole or part, “any debt or other liability” within the meaning of Section 138 of the Negotiable Instruments Act, 1881. Para-11:- We have no hesitation in answering that question in the affirmative. The facts as narrated above and as held proved by the trial court and the appellate court, leave no manner of doubt, that Nazimul Islam had received an amount of rupees ten lakhs from the complainant in connection with the agreement executed between the two. It is also not in dispute that upon termination of the agreement, the amount paid to Nazimul Islam was refundable to the complainant and that Nazimul Islam had agreed to refund the same within one month. The promissory note executed by Nazimul Islam contained an unequivocal acknowledgment of not only the debt/liability aforementioned but promised to liquidate the same within one month with interest at the bank rate. Five cheques handed over were to be returned but only upon payment of the amount in question. Such being the fact situation, it cannot be said that the cheques had nothing to do with any debt or other liability. As a matter of fact, the existence of the debt or liability was never in dispute. On the contrary, it was acknowledged by Nazimul Islam who simply sought one month's time to pay up the amount. The cheques were post-dated, only to give to the drawer 2025:JHHC:14226 -24- the specified one month's time to pay the amount. There is thus a direct relationship between the liability and the cheques issued in connection therewith. Thus far there is no difficulty. Para-12:- The difficulty arises only because the promissory note uses the words “security” qua the cheques. This would ordinarily and in the context in which the cheques were given imply that once the amount of rupees ten lakhs was paid, the cheques shall have to be returned. There would be no reason for their retention by the complainant or for their presentation. In case, however, the amount was not paid within the period stipulated, the cheques were liable to be presented for otherwise there was no logic or reason for their having been issued and handed over in the first instance. If non-payment of the agreed debt/liability within the time specified also did not entitle the holder to present the cheques for payment, the issuance and delivery of any such cheques would be meaningless and futile, if not absurd. Para-13:- It is important to note that it was not a case where no debt or liability was determined or acknowledged to be payable. If cheques were issued in relation to a continuing contract or business where no claim is made on the date of the issuance nor any determinate amount payable to the holder, one could perhaps argue that the cheques cannot be presented or prosecution launched on a unilateral claim of any debt or liability. The present is, however, a case where the existence of the debt/liability was never in dispute. It was on the contrary acknowledged and a promise was made to liquidate the same within one month. Failure on the part of the debtor to do so could lead to only one result viz. presentation of the cheques for payment and in the event of dishonour, launch of prosecution as has indeed happened in the case at hand. Para-14:- The argument that the respondent had no liability to liquidate the debt owed by Nazimul Islam has not impressed us. What is important is whether the cheques were supported by 2025:JHHC:14226 -25- consideration. Besides the fact that there is a presumption that a negotiable instrument is supported by consideration there was no dispute that such a consideration existed inasmuch as the cheques were issued in connection with the discharge of the outstanding liability against Nazimul Islam. At any rate the endorsement made by the respondent on the promissory note that the cheques can be presented for encashment after 25-9-2007 clearly shows that the cheques issued by him were not ornamental but were meant to be presented if the amount in question was not paid within the extended period. The High Court in our view fell in error in upsetting the conviction recorded by the courts below who had correctly analysed the factual situation and applied the law applicable to the same. Para-15:- In the result, we allow these appeals and set aside the order passed by the High Court to the extent it allowed Criminal Revision No. 41 of 2012 filed by the respondent. Consequently, the order passed by the appellate court shall stand restored. We, however, do not see any reason to interfere with the order passed by the High Court to the extent it dismissed Criminal Appeal No. 10 of 2012. No costs.” 49. It has been held in the case of Bir Singh Versus Mukesh Kumar reported in (2019) 4 SCC 197, para-6, 22 to 26, 32, 33, 38 and 40 as follows:- “Para-6:- The object of Section 138 of the Negotiable Instruments Act is to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments including cheques in financial transactions. The penal provision of Section 138 of the Negotiable Instruments Act is intended to be a deterrent to callous issuance of negotiable instruments such as cheques without serious intention to honour the promise implicit in the issuance of the same. Para-22:- In Laxmi Dyechem vs. State of Gujarat & Ors., this 2025:JHHC:14226 -26- Court reiterated that in view of Section 139, it has to be presumed that a cheque was issued in discharge of a debt or other liability but the 5 (2005) 5 SCC 294 6 (2007) 1 SCC 70 7 (2012) 13 SCC 375 presumption could be rebutted by adducing evidence. The burden of proof was however on the person who wanted to rebut the presumption. This Court held “however, this presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act”. Para-23:- In Kumar Exports vs. Sharma Carpets, this Court reiterated that there is a presumption that every negotiable instrument duly executed, is for discharge of a debt or liability, but the presumption is rebuttable by proving the contrary. In the facts and circumstances of the case it was found that the cheque in question was towards advance for purchase of carpets, which were in fact not sold by the payee of the cheque to the drawer, as proved from the deposition of an official of the Sales Tax Department, who stated that the payee had admitted that he had not sold the carpets. Para-24:- In K.N. Beena vs. Muniyappan and Another, this Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the (2009) 2 SCC 513 9(2001) 8 SCC 458 contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued 2025:JHHC:14226 -27- for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability. Para-25:- In R. Vijayan vs. Baby and Another this Court observed that the object of Chapter XVII of the Negotiable Instruments Act is both punitive as also compensatory and restitutive. It provides a single forum and single proceeding for enforcement of criminal liability by reason of dishonour of cheque and for enforcement of the civil liability for realization of the cheque amount, thereby obviating the need for the creditor to move two different fora for relief. This Court expressed its anguish that some Magistrates went by the traditional view, that the criminal proceedings were for imposing punishment and did not exercise discretion to direct payment of compensation, causing considerable difficulty to the complainant, as invariably the limitation for filing civil cases would expire by the time the criminal case was decided. Para-26:- In R. Vijayan vs. Baby this Court observed that unless there were special circumstances, in all cases of conviction, the Court should uniformly exercise the power to levy fine up to twice the cheque amount and keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss, direct payment of such amount as compensation. This Court rightly observed that uniformity and consistency in deciding similar cases by different courts not only increases the credibility of the cheque as a Negotiable Instrument but also the credibility of the Courts of Justice. Para-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 2025:JHHC:14226 -28- Instruments Act. Para-33:- A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 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. Para-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 charge under Section 138 of the Negotiable Instruments Act. Para-40:- The appeals are allowed. The judgment and order of the High Court is set aside. The conviction of the respondent under Section 138 of the Negotiable Instruments Act is confirmed. However, the respondent-accused is sentenced only to fine, which is enhanced to Rs.16 lakhs and shall be paid as compensation to the appellant- complainant. The fine shall be deposited in the Trial Court within eight weeks from the date, failing which the sentence of imprisonment of one year as imposed by the Trial Court shall revive. There shall be no order as to costs.” 2025:JHHC:14226 -29- 50. It has been held in the case of P. Rasiya Versus Abdul Nazer and Another reported in 2022 SCC Online SC 1131, para-7 and 9 as follows:- “Para-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 the 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 upon the accused to 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 Complainant/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. Para-9:- Under the circumstances, the impugned judgment and 2025:JHHC:14226 -30- order passed by the High Court acquitting the accused for the offence punishable under Section 138 of the N.I. Act is hereby quashed and set aside and the order passed by the learned trial Court convicting the accused for the offence punishable under Section 138 of the N.I. Act confirmed/modified by the learned Sessions Court is hereby restored. Now, the accused be dealt with as per the order passed by the first Appellate Court/Sessions Court. 51. It has been held in the case of Rajesh Jain Versus Ajay Singh reported in (2023) 10 SCC 148, para-54, 55, 56, 61, 62 and 63 as follows:- “Para-54:- As rightly contended by the appellant, there is a fundamental flaw in the way both the Courts below have proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly. Para-55:- At the stage when the courts concluded that the signature had been admitted, the Court ought to have inquired into either of the two questions (depending on the method in which accused has chosen to rebut the presumption): Has the accused led any defense evidence to prove and conclusively establish that there existed no 2025:JHHC:14226 -31- debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the non-existence of debt/liability by a preponderance of probabilities by referring to the ‘particular circumstances of the case’? Para-56:- The perversity in the approach of the Trial Court is noticeable from the way it proceeded to frame a question at trial. According to the trial Court, the question to be decided was 'whether a legally valid and enforceable debt existed qua the complainant and the cheque in question (Ex. CWI/A) was issued in discharge of said liability/debt'. When the initial framing of the question itself being erroneous, one cannot expect the outcome to be right. The onus instead of being fixed on the accused has been fixed on the complainant. Lack of proper understanding of the nature of the presumption in Section 139 and its effect has resulted in an erroneous Order being passed. Para-61:- The fundamental error in the approach lies in the fact that the High Court has questioned the want of evidence on part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque. Para-62:- In the teeth of the aforesaid analysis, we have not the slightest of hesitation in concluding that this case calls for interference, notwithstanding that both the courts below have concurrently held in favour of the accused. Since we have answered point No:(i) in the negative, the need to examine point No:(ii) does not arise. Para-63:- Hence, we proceed to allow the appeal by setting aside the judgment of the High Court of Punjab and Haryana at Chandigarh rendered in CRM-A No.148 of 2020 dated 01.02.2022 and allow the complaint filed under Section 138 of Negotiable 2025:JHHC:14226 -32- Instruments Act, 1881 and convict the respondent accused with fine of twice the amount of the cheque namely Rs.13,90,408/- (Rupees thirteen lakh ninety thousand four hundred and eight only) failing which he shall undergo simple imprisonment for one year.” 52. It further reveals that the learned Appellate Court has wrongly calculated the payment of cash of Rs. 90,000/- by the petitioner –Kanchan Tiwary to SBI and also payment of Rs. 3,25,000/- vide Cheque No. 566792 dated 15.04.2010 to SBI as Cheque No. 566792 had bounced, which was given by the petitioner- Kanchan Tiwary (Cr. Revision No. 1737 of 2017) to the opposite party no. 2- Rajesh Kumar Singh. Thus, the learned Appellate Court ought to have directed the petitioner- Kanchan Tiwary for making payment of Rs. 8,15,000/- (Rs. 8.15/- Lakh) instead of Rs. 4,00,000/- (Rs. 4.00/- Lakh) to the O. P. No. 2 –Rajesh Kumar Singh. 53. It is evident that the petitioner- Kanchan Tiwary (Cr. Revision No. 1737 of 2017) has deposited certain amount in the SBI in the year 2015 itself and the details have been given in Chart at para- 21 of the Appellate Court’s judgment. 54. Therefore, in view of the judgment of the Hon’ble Supreme Court in the case of P. Rasiya Versus Abdul Nazer and Another reported in 2022 SCC Online SC 1131, it is evident that the presumption under Section 139 of the N. I. Act is statutory presumption and once, it is presumed that cheque is issued in whole or in part, of any debt or any other liability, which is in favour of the complainant/holder of the cheque, in that case it is for the accused to prove the contrary. 55. The Hon’ble Supreme Court has further held in the case of Rajesh Jain Versus Ajay Singh reported in (2023) 10 SCC 148 that once the signature is admitted by the person issuing the 2025:JHHC:14226 -33- cheque, then, the Court ought to have inquired into either of the two questions and had pointed out that whether the accused has led any defense evidence to prove and conclusively establish that there is no debt/liability at the time of issuance of cheque? Further in the absence of rebuttal evidence, the accused has to prove the nonexistence of debt/liability by a preponderance of probabilities by referring to the ‘particular circumstances of the case ? 56. Thus, Criminal Revision No. 1737 of 2017 is hereby dismissed by directing the petitioner-Kanchan Tiwary to pay Rs. 8.15/- Lakh (Rs. Eight Lakh Fifteen Thousand) to the O. P. No. 2- Rajesh Kumar Singh at first instance within ten (10) weeks from the date of receipt of the copy of this order failing which the petitioner- Kanchan Tiwari shall undergo S. I. for a period of three (3) months and to pay compensation of Rs. 8.15/- Lakh (Rs. Eight Lakh Fifteen Thousand). 57. Thus, Cr. Revision No. 11 of 2018 filed by the petitioner- Rajesh Kumar Singh is allowed in part and the O. P. No. 2- Kanchan Tiwari is directed to make payment of Rs. 8.15/- Lakh (Rs. Eight Lakh Fifteen Thousand) to the petitioner- Rajesh Kumar Singh within ten (10) weeks from the date of receipt of the copy of this order failing which the opposite party no. 2- Kanchan Tiwari shall undergo S. I. for a period of three (3) months and to pay compensation of Rs. 8.15/- Lakh (Rs. Eight Lakh Fifteen Thousand) and the petitioner-Rajesh Kumar Singh will be at liberty to recover the same through the process of law by taking all possible measures against him. (Sanjay Prasad, J.) Kamlesh/A.F.R.