1 2025:CGHC:8051 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on: 16.12.2024 Judgment Delivered on: 14.02.2025 ACQA No. 54 of 2014 Budheshwar Verma S/o Shri B.R. Verma, aged about 29 years, R/o Mova, Pragati Nagar, Raipur, Police Station Pandari, Tahsil, Civil and Revenue District. Raipur (C.G.) ... Appellant Versus Shri Sheikh Inam Salim S/o Shri H.U. Sheikh R/o Shanker Nagar, Raipur, Office A-2/1, Ravi Bhavan, R.K. Photo Studio, Raipur (C.G.) ... Respondent For Appellant : Ms. Pooja Lonia, Advocate. For Respondent : None. Hon'ble Smt. Justice Rajani Dubey CAV Judgment 1. This acquittal appeal is filed under Section 378 (4) of Cr.P.C by the appellant/complainant against the impugned judgment dated 25.10.2013 passed by the Judicial Magistrate First Class, Raipur, (C.G.) in Criminal Complaint Case No. 269/2013, whereby the 2 learned trial Court has acquitted the respondent/accused of the charge for commission of offence under Section 138 of the Negotiable Instruments Act, 1881. 2. Brief facts of the case are that the appellant/complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 before the learned trial Court against the respondent/accused. The Judicial Magistrate First Class, Raipur vide its order dated 25.10.2013 has acquitted the accused/respondent for an offence punishable under Section 138 of the NI Act. As per the complaint case, the appellant and respondent/accused entered into a partnership through an agreement and according to that the accused was liable to pay Rs. 2,00,000/- (Rupees Two Lakhs only) in case of closure of business and if the complainant removed from the firm. The accused has given a cheque bearing No. 680045 dated 17.10.2005 of AICICI Bank, Raipur branch to the complainant which was presented for encashment on 17.10.2005 at complainant’s Banker Punjab National Bank Anupam Nagar, Raipur. The cheque was returned with memo dated 17.10.2005 wherein the remark “ not sufficient fund in the account” was mentioned. The complainant received the information on 11.10.2005 and thereafter through his counsel issued notice dated 29.10.2005 and asked for payment of Rs. 2,00,000/- within 15 days from the date of receipt and the accused/respondent has received notice on 08.11.2005. But, the accused/respondent had 3 not paid the cheque amount and thereafter on 30.11.2005 the complainant presented Criminal Complaint Case No. 269/2013 before the Court of Judicial Magistrate First Class, Raipur (C.G.) against the respondent/accused. 3. In support of the complaint, the appellant/complainant examined himself as PW-01 and in his defence the accused/respondent has examined Javed Salim Sheikh as DW-01 and Rupesh Jha as DW- 02. 4. The learned trial Court after appreciating the oral and documentary evidence by judgment dated 25.10.2013, acquitted the respondent of the offence under Section 138 of the Negotiable Instruments Act, 1881. Hence, this acquittal appeal filed by the appellant/complainant. 5. Learned counsel for the appellant submits that the impugned judgment of acquittal is bad-in-law and also on facts available on record. The learned trial Court has failed to appreciate that the complainant was holder of cheque in due course. The learned trial Court has failed to appreciate that the accused has not lodged any report for loss of cheque or any report of cheating in respect of cheque issued by him. The learned trial Court has failed to appreciate that cheque was tendered for discharge of liability. The learned trial Court did not appreciate the oral and documentary evidence of the complainant and also did not appreciate the 4 provisions of Negotiable Instruments Act, 1881. So, the impugned judgment is liable to be set aside. 6. Reliance has been placed on the decision of Hon’ble Apex Court in the matter of M/s. Enprocon Enterprises Ltd. And Anr. Vs. M/s. Apollo Fiege Integrated Solutions Pvt. Ltd. reported in 2017 SCC OnLine P & H 1808 and in this Court’s order dated 13.05.2022 in the matter of Satish Thosar Vs. Sivram Bandhu passed in ACQA No. 122 of 2012. 7. No one appeared on behalf of the respondent on the date of argument. 8. Heard both the counsel for the parties and perused the material available on record. 9. From bare perusal of the record, It is evident that the trial Court that the complainant filed complaint under Section 138 of NI Act, 1881 against the accused/respondent. The complainant examined himself and filed cheque vide Ex. P/01, bank memo vide Ex. P/02, copy of notice and postal receipt vide Ex. P/03 and acknowledgment of receipt vide Ex. P/04. The respondent also examined two witnesses in his defence viz. Javed Salim Sheikh, Manager of Axis Bank as DW-01 and Rupesh Jha as DW-02. The respondent denied the issuance of cheque, but it was suggested by the defence in cross-examination of complainant that the 5 cheque was issued for only showing his family members. In para 11 & 12 of cross-examination of the complainant witness is as under:- 11- ;g dguk xyr gS fd eS mDr psd dks vius ifjokj okyks dks fn[kkus ds fy, fd eS vfHk;qDr ds lkFk O;olk; dj jgk gWw fn[kkus ek= ds fy, psd ys x;k FkkA ;g dguk xyr gS fd blfy, eSus mDr psd dks nqHkkZouk iwoZd xyr mi;ksx djrs gq, U;k;ky; esa izdj.k izLrqr fd;k gwaA 12- ;g dguk xyr gS fd esjk bl QeZ ls dksbZ ysuknsuk ,oa nkf;Ro ugh Fkk blfy, eSaus dksbZ nLrkost is”k ugh fd;k gSA vkt fnukad dks eq>s ;kn ugh gS fd ml psd dk uacj D;k gSa ;g dguk lgh gS fd vfHk;qDr us eq>s vkbZ lh vkbZ cSad dk psd iznku fd;k FkkA eq>s vkt fnukad dks ml psd dk fnukad ;kn ugh gSA 10.Defence witness Javed Salim Sheikh DW-01 has also stated that the cheque was given by the respondent to the complainant for showing his family members. Para 3 of his statement is reproduced herein for ready reference as under:- 3- cq}s”oj oekZ 'ks[k ds uke ls ;g pkg jgk Fkk fd oks vius ifjokj ds yksxksa dks ;g fn[kykuk pkgrk Fkk fd oks “ks[k ds uke ds lyhe Vsyh dE;qfuds'ku esa 'kkfey gksus ij eq>s vPNs [kklh jde dk Qk;nk gksxk bl gsrq 'ks[k buke cq}s'oj oekZ dks ,d psd ns ns ftlls mlds ifjokj ds yksx bl ckr ls lger gks tk, fd vfHk;qDr dh daiuh esa 'kkfey gksus ls cq}s'oj oekZ dks Qk;nk gks ;|fi bl ckr ls eSa lger ugh FkkA fQj Hkh 'ks[k buke vius nksLr ij fo'okl djds mlds ifjokj ds yksxksa dks fn[kkus ds fy, ,d psd cq}s'oj oekZ dks ns fn;kA 11. Rupesh Jha DW-02 admitted his signature on cheque and stated that in Ex. P/01 signature of Sheikh Imam Salim (accused/respondent) is present and his bank account is in ICICI Bank, Raipur. 6 12. Hon’ble Apex Court in the matter of Rajesh Jain (supra) held in paras 53 & 54 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- 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 7 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 defence 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.In the light of above judgment and in the present case also it is clear that the accused/respondent has admitted his signature at issuance of cheque. Negotiable Instruments Act, 1881 is a Special Act and presumption under Section 118 & 139 is in favour of the complainant. The learned trial Court finds that the complainant has failed to prove its case beyond reasonable doubt. This finding is erroneous and not according to the NI Act and as per NI Act, complainant has to prove that the accused gave his cheque and the cheque was dishonoured by the bank and after demand of notice the respondent has failed to pay the cheque amount to the complainant. 14.As such, the findings recorded by the learned trial Court are not sustainable. In the facts and circumstances of the case and in the light of guideline of Hon’ble Apex Court and the provisions prescribed under Negotiable Instruments Act, the impugned 8 judgment dated 25.10.2013 is set aside and this appeal is allowed and the respondent is convicted under Section 138 of NI Act and he is sentenced to pay fine of Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand) as compensation under Section 357(3) of Cr.P.C. to the appellant/complainant within a period of three months from the date of receipt of copy of this judgment. In case of default of payment of fine, he shall undergo simple imprisonment for 01 year. Sd/- (Rajani Dubey) Judge Uttej