1 2025:CGHC:19786 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 972 of 2024 Judgment Reserved on : 05.02.2025 Judgment Delivered on : 01.05.2025  Vijay Kumar Das S/o R.B. Das Aged About 40 Years R/o J-78, Sec. 2, Shankar Nagar Raipur, District-Raipur (C.G.) ... Appellant versus  Anil Kumar Das S/o Banmali Das Aged About 45 Years R/o. Flat No 110, Badri Prasad Apartment Ganpati Hotel Ke Pas, Bargadh, District Bargadh (Odisha) Pin 768028 ... Respondent For Appellant : Ms. Palak Dwivedi, Advocate For Respondent : Mr. Ali Afzal Mirza, Advocate Hon'ble Shri Justice Narendra Kumar Vyas (CAV Judgment) 1. The appellant has filed the present acquittal appeal under Section 378(4) of the Code of Criminal Procedure, 1973 against the order dated 29.04.2024 (Annexure A/1) passed by the learned Judicial Magistrate First Class Raipur, District - Raipur (C.G.) in Complaint Case No. 3328/2016 by which the learned Magistrate has dismissed the complaint filed under Section 138 of Negotiable Instruments Act, 1881 (in short “N.I. Act, 1881”) and acquitted the MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.05.01 15:22:57 +0530 2 accused. 2. Brief facts of the case are that: a. The complainant is a registered money lender and the complainant and accused are known to each other and because of family relationship the accused has taken a loan of Rs. 15,00,000/- from the complainant to sell the land and for some business purpose. It is also the case of the complainant that towards security of loan the accused has given a cheque bearing No. 036883 dated 16.01.2016 drawn at Oriental Bank of Commerce, Branch Rajnandgaon for Rs. 15,00,000/-. b. The said cheque was deposited in the account maintained by the complainant in State Bank of India Branch Raipur on 06.02.2016 and on 10.02.2016. The said cheque was returned on 16.02.2016 with endorsement “dishonored due to insufficient fund” vide memo dated 16.02.2016, thereafter, the appellant had sent a legal notice through his counsel to the accused on 17.02.2016. The accused neither paid the amount nor replied to the said notice, therefore, he has filed a complaint case under Section 138 of N.I. Act, 1881 against the accused before the learned Judicial Magistrate First Class Raipur, District - Raipur (C.G.). 3. The complainant to prove his case has examined himself by way of an affidavit as provided under Section 145 of N.I. Act, 1881 and exhibited documents i.e. Cheque bearing No. 036883 dated 16.01.2016 (Exhibit P/1), Cheque Return Memo (Exhibit P/2 & P/3), Notice dated 17.02.2016 (Exhibit P/4) and Postal Receipt 3 (Exhibit P/5) in support of his complaint. The complainant was extensively cross-examined by the counsel for the accused who has admitted in paragraph 12 of the evidence that in the complaint or examination-in-chief by way of an affidavit he has not mentioned that the accused has taken money to purchase which plot and also admitted that he has not submitted Income Tax Return. He has also admitted that in the complaint, affidavit and notice he has not mentioned that from which mode the accused has taken money from him. He has also admitted that accused is his relative. He has also admitted that he has not submitted acknowledgment of the notice and he and his family members have filed various cases for dishonor of cheques. 4. The accused has not examined any witnesses, but he has examined under Section 313 of Cr.P.C. wherein he has stated that he has neither taken any loan and no transaction with the complainant has been taken place. On the basis of evidence and material on record, the learned trial Court has recorded its finding that the complainant has not proved that he has given money to the accused and cheque was given towards debt or liability. Accordingly, by the impugned order the trial Court has dismissed the complaint and acquitted the accused. Being aggrieved with this order the complainant has filed this acquittal appeal. 5. Learned counsel for the appellant would submit that the learned trial court has failed to appreciate the evidence available on record and wrongly acquitted the accused. He would further submit that accused has not disputed the validity of the cheque hence it 4 amounts to admission, therefore, trial Court should have drawn presumption in favour of the appellant. It has been further contended that the trial Court has committed illegality in recording its finding that essential ingredients of Section 138 of N.I. Act, 1881 has not been proved. Thus, he would pray for allowing the appeal. 6. On the other hand, learned counsel for the respondent would submit that the complainant has not placed on record to demonstrate that the said cheque was given by the accused towards any debt or liability and thus he would pray for dismissal of the appeal. 7. I have heard learned counsel for the parties and perused the record. 8. Considering the rival submissions of the parties, the point emerged for determination by this Court are: Whether the finding recorded by the trial Court that the complainant has not given any notice to attract Section 138 of the N.I. Act, 1881 is legal, justified or suffers from perversity? 9. To appreciate the point framed by this Court, it is expedient for this Court to go through the evidence brought on record. The complainant in his cross-examination has admitted that in the complaint or examination-in-chief by way of an affidavit he has not mentioned that the accused has taken money to purchase which plot and also admitted that he has not submitted Income Tax Return. He has also admitted that from which mode the accused has taken money has not been mentioned in the complaint or in 5 affidavit. He has also admitted that accused is his relative. He has also admitted that he has not submitted acknowledgement of the notice. It is pertinent to mention here that the complainant in the complaint itself has mentioned that he is registered money lender and by way of security the accused has given the cheque of Rs. 15,00,000/- which has been dishonored. 10. The learned trial Court on the basis of evidence and material on record has recorded its finding in paragraph 12 that the complainant and his family members have filed various cases against the accused for dishonor of cheques which clearly reflects that there is financial transaction between them. The trial Court has also recorded its finding that the complainant has not established his annual income which creates doubt that on a single demand he has given Rs. 15,00,000/- to the accused. The learned trial Court has recorded its finding that the complainant is unable to draw presumption that cheque was given towards debt or liability to attract provisions of Section 138 of N.I. Act, 1881 which is essential for the complainant to prove the presumption as required under Section 139 of the N.I. Act, 1881 which the complainant miserably failed to prove. It is well settled position of law that the initial burden lies upon the complainant then only the rebuttal is required to be done by the accused. The Hon’ble Supreme Court in case of Rajesh Jain vs. Ajay Singh reported in 2023 (10) SCC 148 has considered the ingredients of the offence enumerated in Section 138 of N.I. Act, 1881 and on its fulfillment, the offence under Section 138 of N.I. Act, 1881 will be attracted if the accused is unable to rebut the statutory presumption 6 contemplated by Section 139 of the N.I. Act, 1881. The Hon’ble Supreme Court in paragraphs 26 to 28 of the aforesaid judgment has held as under: “26. In Gimpex Private Limited vs. Manoj Goel, this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure: (1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account; (i) The cheque being drawn for the discharge in whole or in part of any debt or other liability; (iii) Presentation of the cheque to the bank arranged to be paid from that account, (iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount (v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and (vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice. 27. In K. Bhaskaran v. Sankaran Vaidhyan Balan8 this Court had summarised the constituent elements of the offence in fairly similar terms by holding: “14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice.” 28. The five (5) acts as set out in K Bhaskaran’s case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex’s case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in 7 Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability.” 11. Again the Hon’ble Supreme Court in case of N. Vijay Kumar vs. Vishwanath Rao N. reported in 2025 SCC Online 873 has held in paragraphs 11, 13 and 14 which reads as under: “11. Considering the sum total of the above, we find that the probable defence on the part of the accused has been established. Once such a defence is established, the burden again shifts upon the complainant to now establish his case beyond a reasonable doubt, for after all, the effect of Section 138 of the N.I. Act is a criminal conviction. Reference may be made to Rajesh Jain v. Ajay Singh12 and, more particularly Para 44 thereof, which reads as under: “44. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption “disappears” and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa v. Mudibasappa {Basalingappa v. Mudi basappa, (2019) 5 SCC 418: (2019) 2 SCC (Cri) 571: AIR 2019 SC 1983]; see also, Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184: AIR 2010 SC 1898}]” 13. Keeping in view the above factors, it cannot be said that the complainant was able to discharge the burden once it had shifted back upon him, with the accused having discharged the burden of Sections 118 and 139 of the N.I. Act. 14. Consequent to the above discussion, we are of the view that the Trial Court was correct in recording a finding of acquittal in favour of the accused and reversal thereof by the High Court in terms of the impugned judgment, with particulars 8 as in Para 1, was unjustified. As a result, the appeal is allowed.” 12. Considering the fact and law on the subject, it is quite vivid that the learned trial Court has not committed any illegality in recording its finding of fact that cheque was not given towards any debt or liability and also considering the well settled position of law that if one view is in favour of the accused acquitting him from the charges the appellate Court should not normally disturb the finding of acquittal unless so cogent or vital materials have been ignored by the trial Court or there is a clear chance of conviction of the accused, this is not the situation in the present case as there is no perverse finding recorded by the trial Court. The trial Court has examined the evidence in detail and the opinion of the trial Court goes against the complainant. Further considering that there is no perversity in the findings of the trial Court which warrant interference in the acquittal appeal, the acquittal appeal deserves to be dismissed and it is dismissed.s Sd/- (Narendra Kumar Vyas) Judge Manish