1 2025:CGHC:15566 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Reserved on 10-12-2024 Pronounced on 03-04-2025 ACQA No. 894 of 2024  Lalit Kumre, aged about 41 years, s/o. Late Shri Baliram Kumre r/o. Ward No.2, in front of Sanskar Public School, Somni, P.S. and Post Somni Tah and District Rajnandgaon (CG). ... Appellant versus  Narendra Mohan Sao aged about 40 years, s/o. Vishnu Shanker Sao, at present r/o. Housing Board, EWS No. 215, Kohka Bhilai District Durg (CG), at present posted as Assistant Teacher, Government Prirmary School Kachandur, Sankul Jevra, Tah. and District Durg (CG). ... Respondent For appellant. : Mr. Rakesh Kumar Thakur, Advocate. For Respondent : Mr. Abhishek Sharma, Advocate. (Hon’ble Mr. Justice Narendra Kumar Vyas) CAV Judgment 1. This acquittal appeal has been filed by the appellant against the order dated 3-5-2023 passed by learned Judicial Magistrate First Class, Rajnandgaon, District Rajnandgaon in Criminal Case No. 2111 of 2021 whereby the respondents/accused has been acquitted for commission of offence under Section 138 of the Negotiable Instruments Act. 2 2. The brief facts as reflected from the record are that the complainant/appellant filed a complaint before the learned Judicial Magistrate First Class, Rajnandgaon, mainly contending that: (a) the appellant/complainant and respondent/accused are known to each other and the respondent due to house hold necessity has requested the complainant to give Rs. 1,00,000/- on credit and in turn the complainant gave him Rs. 25,000/- on 15-2-2020 in cash and Rs.25,000/- on 15-3-2020 in cash and Rs.50,000/- on 12-5-2020 by cheque bearing No. 015106 Thus, the respondent has taken Rs.1,00,000/- with assurance that he will return the same, but he has not paid the amount though the agreement dated 12.05.2020 was executed between the complainant and accused. (b) It is also the case of the complainant that the accused to discharge his liability has given a cheque bearing No. 041067 of Rs.1,00,000/- on 4-2-2021 payable at District Cooperative Bank, Durg in the account being maintained by him. When the complainant deposited the said cheque for clearance in the bank, the said cheque was dishonored “due to insufficient fund” and the same was returned to the complainant on 6-2-2021. Thereafter, the appellant through his counsel sent a legal demand notice to the accused/respondent on 19-2-2021. Neither the accused has replied to the said notice nor has paid the said amount to the complainant, therefore, the complainant has filed a complaint under Section 138 of Negotiable Instruments Act, 1881 against the accused which was registered as Criminal Case No. 2111 of 2021. (c) Learned trial court taking cognizance of the complaint has issued summon to the accused for appearance before the learned trial Court. During the trial the appellant examined himself by way of an affidavit under Section 145 of the Negotiable Instruments Act, 1881 reiterating 3 the contentions raised in the complaint. The complainant to prove his case has exhibited cheque as Exhibit P/1, cheque return memo as Exhibit P/2, registered notice (Ex.P/3), postal receipt dated 19-2-2021 (Ex.P/4 and P/5), acknowledgment receipt (Ex.P/6) and agreement dated 12-5-2020 (Ex.P/7). The complainant was cross-examined by the accused wherein he has admitted that on 19-3-2020 amount of Rs. 50,000/- has not been given to the accused. He has also admitted that the cheque for which complaint has been filed, no documentation has,been produced before the learned trial Court. He has also admitted that the accused has also not received any amount regarding cheque No. 041067. He has also admitted that cheque Nos. 041064 and 041065 have been mentioned in the agreement regarding the amount given by the accused. (d) The accused has examined himself under Section 313 of the Cr.P.C. wherein he has stated that he has been falsely implicated in the offence and he has not received any amount with regard to cheque and denied the allegation levied against him. Learned Judicial Magistrate First Class, Rajnandgaon, vide impugned order has dismissed the complaint by recording its finding that the accused has not given the cheque No. 041067 towards any debt or liability and the learned trial Court has also recorded its finding that the complainant is unable to prove the ingredients of Section 138 of the Negotiable Instruments Act and accordingly learned trial Court has dismissed the complaint and acquitted the accused. Being aggrieved by the order of acquittal, the appellant has preferred this acquittal appeal. 3. Learned counsel for the appellant would submit that the learned trial Court has committed illegality in holding that the cheque was not given in discharge of liability or enforceable debt. He would further submit that 4 once the accused has signed the cheque then the presumption should have been drawn in favour of the holder of the cheque under section 138 of the NI Act, 1881, unless it is rebutted by the accused. In the present facts and circumstances of the case, the accused is unable to rebut the presumption, therefore, the learned trial Court has committed illegality and irregularity in dismissing the criminal complaint case and acquitted the accused. Thus he would pray for quashing of the impugned order. To substantiate his submissions, he has referred to the judgment of Hon’ble Supreme Court in case of Don Ayengia vs. State of Assam and another, reported in 2016 (3) SCC 1 and also referred to the judgment of Sripati Singh (since deceased) through his son Gaurav Singh vs. State of Jharkhand and another, reported in 2022 (18) SCC 61 and also referred to the judgment of Hon’ble High Court of Delhi in case of Suresh Thomas vs. Mod Enterprises, reported in 2016 (4) JCC 209. 4. Per contra, learned counsel for the respondent opposing the submissions made by learned counsel for the appellant would submit that the cheque was issued as a security and not in discharge of legally recoverable debt or liability, therefore, the cheque has been misused and the respondent/accused has already made payment to the appellant. Thus, he would submit that the learned trial Court has recorded its finding which does not suffer from perversity or illegality warranting any interference by this Court and would pray for dismissal of the acquittal appeal. 5. I have heard learned counsel for the parties and perused the record. 6. From the submissions made by the parties, the point emerged for determination of this Court is whether the finding recorded by the learned trial Court that the accused is unable to prove that the cheque 5 bearing No. 041067 was given towards any liability. To appreciate this point, it is expedient for this Court to go through the evidence adduced before the learned trial Court and Section 138 of the Negotiable Instruments Act, 1881 reads as under. “Section 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 provision of this Act, be punished with imprisonment for 2[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, 3[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. Explanation.-- For the purposes of this section, debt of other liability means a legally enforceable debt or other liability.” 7. The complainant in his cross examination has categorically admitted that the cheque No. 041067 has not been mentioned in the agreement dated 12-5-2020 executed between the appellant and the accused. In the agreement, cheque No. 041064 and 041065 have been shown and in the entire agreement there is no description of the cheque bearing No. 6 041067 which has been dishonored due to insufficient fund. The complainant has also admitted that he has neither produced any document before the trial Court with regard to the cheque which has been dishonored and neither complaint nor the statement of bank account has been filed before the trial Court. Thus, the complainant is unable to prove that the cheque No. 041067 was given for any debt or liability which is paramount consideration for attracting the Section 138 of the Negotiable Instruments Act, 1881. Section 138 of the NI Act, 1881 clearly provides that the 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 under Section 138 of the NI Act. Thus, it is necessary for the complainant to prove that the cheque was given towards discharge of any debt or liability and if the complainant is unable to establish that the cheque was given by the accused towards any debt or liability, then presumption should have been drawn under Section 138 of the Act in favour of the accused. 8. In the present case, the complainant in his evidence has categorically admitted the fact that on 19-3-2020 the amount mentioned in the agreement to the tune of Rs.50,000/- mentioned to be paid to the accused on 19-3-2020 has not been given to the accused which clearly demonstrates that the cheque was not given towards any debt or liability and even in the entire complaint neither he has mentioned nor any document has been placed on record to prove that the cheque was 7 given towards any debt or liability. As such, the finding recorded by the learned trial Court cannot be held to suffer from perversity or illegality. 9. Even in the judgment cited by learned counsel for the appellant in case of Don Ayengia (supra), Hon’ble Supreme Court has held that the cheque given in lieu of security will be treated as cheque for liability in case the period for which liability was to be discharged by the accused, but has not been discharged. In case of Sripati Singh (supra), Hon’ble Supreme Court has also taken the same view. The legal position as held by the Hon’ble Supreme Court is not in dispute but whether in the present facts and circumstances of the case, the law laid down by the Hon’ble Supreme Court, it is not applicable as the complainant is unable to prove that cheque in question bearing No. 041067 was given towards any liability. Thus, I am of the view that the learned trial Court has not committed any illegality or irregularity in dismissing the criminal complaint case filed by the complainant/appellant. 10. Accordingly, the acquittal appeal being devoid of merit is liable to be and is hereby dismissed. 11. No order as to costs. Sd/- (Narendra Kumar Vyas) JUDGE Raju RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.04.03 13:32:04 +0530