1 2025:CGHC:35247 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 13 of 2019 Shri Sai Agro Tractor Dealer through Proprietor Kamlesh Singh S/o Shri B. N. Rajput, Aged About 43 Years, R/o Deendayal Upadhyay Housing Board Joratal Kawardha, Thana And Tahsil Kawardha, District Kabeerdham Chhattisgarh ... Appellant. -VERSUS- Jageshwar Singh Markam S/o Kopal Markam Aged About 35 Years R/o Ranidahra, Thana And Tahsil Bodla, District Kabeerdham Chhattisgarh ... Respondent. For Appellant : Mr. Samir Singh, Advocate. For Respondent : Mr. Suresh Kumar Verma, Advocate. SB : Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 23.07.2025 1. This appeal has been preferred against the judgment of acquittal dated 17.10.2018 passed by the Sessions Judge, Kabirdham in Criminal Appeal No.53/2018, whereby, the judgment passed by the Judicial Magistrate First Class, Kawardha, District Kabirdham (Kawardha) on 26.04.2018 convicting the accused for the offence Digitally signed by AJAY KUMAR DWIVEDI DN: cn=AJAY KUMAR DWIVEDI, ou=HIGH COURT OF CHHATTISGARH, o=HIGH COURT OF CHHATTISGARH, st=CHATTISGARH, c=IN Date: 2025.07.25 10:26:58 +0530 2 under Section 138 of the Negotiable Instruments Act, 1881 (for short, the “NI Act”) was set-aside and the respondent/accused was acquitted of the said charge. 2. Necessary facts of the case, in brief, are that the appellant/complainant is running a business of tractor selling styled as "Sai Agro Tractor Trolley" and he is also a sub dealer of "New Hawland Company Tractor" firm. The appellant has filed complaint on 16.10.2017 before the Judicial Magistrate First Class, Kabirdham to the effect that the respondent/accused purchased tractor and its accessories from his firm for the agricultural purpose amounting to Rs.8,33,410/- from his firm on 08.06.2016 and out of the said amount, Rs.5,70,000/- was paid to the complainant in installments. However, for remaining amount of Rs.3,14,775/- (including interest), the accused has given the cheque (Ex.P-1) dated 01.08.2017 to the complainant. However, when the cheque was presented before the Bank for encashment, the same was returned dishonoured on account of insufficient funds and return memo was sent to the complainant vide Ex.P-2. Thereafter, the complainant sent legal notice (Ex.P-3) on 11.08.2017 to the accused for payment of cheque amount, however, the accused has not paid the said amount. Hence, the complaint was registered before the trial Court. 3. The complainant has filed five documents in support of his case i.e. Cheque dated 01.08.2017 (Ex.P-1), Return Memo (Ex.P-2), Legal 3 Notice along with postal receipt (Ex.P-3 & Ex.-4) and bank cheque deposit receipt (Ex.P-5). 4. The accused has denied the allegation levelled upon him and claimed to be tried. Learned trial Court after evaluating the evidence on record allowed the complaint case and convicted the accused for the offence under Section 138 of the NI Act and sentenced him to undergo RI for 6 months with fine of Rs.5000/- with usual default stipulation. 5. Being aggrieved by the judgment of conviction and sentence, the complainant has preferred an appeal before the appellate Court, whereby, the appellate Court set-aside the judgment of conviction and sentence and acquitted the accused of the charge under Section 138 of the NI Act. Being aggrieved by the order of acquittal, this appeal has been filed. 6. Learned counsel for the complainant/appellant submits that the appellate Court has not appreciated the evidence and law in proper perspective though the accused himself admitted the fact regarding purchase of tractor and its accessories. Further, the appellate Court only on the technical ground that the appellant failed to prove onus with regard to service of legal notice upon the accused has acquitted the accused which is not justifiable. He submits that since the service was properly effected on the address of the accused, there is legal presumption under Section 27 of the 4 General Clauses Act. He also submits that there is a legal presumption under Section 139 of the NI Act that valid consideration has been passed which has not been rebutted by the respondent/accused, however, the trial Court has not appreciated the evidence in proper perspective and acquitted the accused wrongly only on the technical ground, therefore, the judgment of acquittal deserves to be set-aside. 7. On the other hand, learned counsel for the respondent supports the impugned judgment and submits that the appellate Court has passed the impugned judgment of acquittal after proper appreciation of records, therefore, this acquittal appeal has no merit and same deserves to be dismissed. 8. Heard rival submission of learned counsel for the parties and perused the record with utmost circumspection. 9. In the impugned judgment, the appellate Court has recorded a finding that service of summon has not been proved by the complainant though the complainant has filed postal receipt vide Ex.P-4 of the post office through which he has sent legal notice (Ex.P-3). This Court finds some force in submission made by the counsel in this regard that there is legal presumption under Section 27 of the General Clause Act. The law has also been laid down in this regard in C.C. Alavi Haji Vs. Palapetty Muhammed 5 [(2007) 6 SCC 555)], wherein, following was observed at Para 17 which reads as under:- “17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation.As observed in Bhaskaran case [K.Bhaskaran v. SankaranVaidhyanBalan, (1999) 7 SCC 510 : 1999 SCC (Cri) 1284] if the "giving of notice" in the context of clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.” 10. Similarly, in Bhaskaran Vs. Sankaran Vaidhyan Balan [(1999) 7 SCC 510] following was materially observed at Para 16 to 18: 6 "16. Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act. 17. The more important point to be decided in this case is whether the cause of action has arisen at all as the notice sent by the complainant to the accused was returned as “unclaimed”. The conditions pertaining to the notice to be given to the drawer, have been formulated and incorporated in clauses (b) to (c) of the proviso to Section 138 of the Act. The said clauses are extracted below: “(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 fifteen 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.” 18. On the part of the payee he has to make a demand by “giving a notice” in writing. If that was the only requirement to complete the offence on the failure of the 7 drawer to pay the cheque amount within 15 days from the date of such “giving”, the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days “of the receipt” of the said notice. It is, therefore, clear that “giving notice” in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address." 11. Apart from the above, the appellate Court while passing the judgment impugned has referred the judgment passed in the matter of Milind Shripad Chandurkar Vs. Kalim M. Khan [(2011) 4 SCC 275], wherein it has been observed if the complainant has no documentary evidence to prove nexus or connection between the alleged proprietor of the firm and the firm, he has no locus standi to file the complaint under the NI Act and mere statement on affidavit in this regard is not sufficient to meet the requirement of law. For the ready reference, Para 26 and 27 of the aforesaid judgment is reproduced hereunder :- "26. In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole proprietor of the concern and being so, he could also be payee himself and thus, entitled 8 to make the complaint. The appellant miserably failed to prove any nexus or connection by adducing any evidence, whatsoever, worth the name with the said firm, namely, Vijaya Automobiles. Mere statement in the affidavit in this regard, is not sufficient to meet the requirement of law. The appellant failed to produce any documentary evidence to connect himself with the said firm. 27. It is evident that the firm had a substantial amount of business as in one month it sold the diesel to Respondent 1 - a single party, for a sum of Rs. 7 lakhs. The appellant would, in addition, have also been carrying out business with other persons. Thus, a person with such a big business must have had transactions with the bank and must have been a payee of income tax, sales tax etc. Thus, in such a fact-situation, there would be no dearth of material which could have been produced by the appellant to show that he was the sole proprietor of the said firm. The appellant failed to adduce any evidence in this regard, nor made any attempt to adduce any additional evidence at the appellate stage, in spite of the fact that the respondent is raising this issue from the initiation of the proceedings. " 12. In the case at hand, the complainant Kamlesh Singh (CW-01) in Para 2 of the cross-examination categorically admitted the fact that he has not filed any document to demonstrate that he is the proprietor of Shri Sai Agro firm, therefore, when the complainant 9 himself stated that he is proprietor of the firm but he has failed to produce any documentary evidence to connect himself with the said firm, mere statement in this regard is not sufficient to meet the requirement of law. Hence, the findings arrived at the appellate Court in this regard are just and proper. 13. It is also well established principle that where two views are possible, then the appellate Court should not ordinarily interfere and reverse the findings of acquittal and further interference should be avoided where the other view is possible, unless there are good reasons for interference. 14. For the foregoing and in view of the principles laid down in Milind Shripad Chandukar (Supra) and considering the evidence available on record, this Court is of the view that the appellant has failed to establish its nexus with proprietor in accordance with law and further the findings arrived at by the appellate Court in this regard are just and proper. 15. Accordingly, the Appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Ajay