1 2025:CGHC:43851 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No.800 of 2019 Shri Sai Agro Tractor Dealer Kamlesh Singh, S/o Shri B.N. Rajput, Aged About 37 Years, R/o Bypass Road Kawardha, Thana And Tahsil Kawardha, District Kabeerdham (CG) (Complainant) ...Appellant versus Ramkhilawan Sahu S/o Rajaram Sahu Aged About 49 Years R/o Village Khaira, Thana And Tahsil Sahaspur Lohara, District Kabeerdham CG) (Accused) ... Respondent _____________________________________________________ For Appellant : Shri Samir Singh, Advocate. For Respondent : Shri Basant Dewangan, Advocate. _____________________________________________________ SB : Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 29.08.2025 1. This Appeal has been preferred against the judgment of acquittal dated 29.06.2019 passed by the Sessions Judge, SISTLA NEELIMA VISHNU PRIYA Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.08.30 13:37:40 +0530 2 Kabirdham in Criminal Appeal No.18/2018 whereby, the judgment passed by the Judicial Magistrate First Class, Kawardha, District Kabirdham (Kawardha) on 21.02.2018 convicting the accused/Respondent for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’) was set- aside and he was acquitted of the said charge. 2. Necessary facts of the case are that the Appellant/Complainant is running a business of tractor agency 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 07.04.2015 before the Chief Judicial Magistrate, Kabirdham to the effect that on 03.06.2013, the accused/Respondent purchased tractor and its accessories from his Firm for the agricultural purpose amounting to Rs.7,50,900/- with a concession of Rs.50,000/- and the remaining amount of Rs.7,27,160/- (including Bank charges Rs.20,940/-, Service charges Rs.2,320/- and installment charges Rs.3,000/-) was to be paid by the accused/Respondent out of which, Rs.50,000/- was paid in cash and the remaining amount of Rs.4,52,105/- was financed through Bank. The accused/Respondent has given a cheque amounting to Rs.2,75,000/- (Ex.-P-1) dated 23.01.2015, however, when the said cheque was presented before the Bank for encashment, the same got dishonoured (Ex.P-2). Thereafter, the Appellant/Complainant 3 sent a legal notice (Ex.P-3) on 02.02.2015 to the accused/Respondent for payment of cheque amount and despite the same, when the payment was not done, the complaint case has been filed before the trial Court. 3. During trial, the accused/Respondent abjured the guilt and came to be tried. In order to prove its case, the Complainant has examined Kamlesh Singh (CW-1), Assistant Manager of IDBI Bank i.e. Sunny Inwal (CW-2) and Clerk of the Union Bank of India i.e. Naveen Sahu (CW-3) and exhibited 5 documents i.e. cheque dated 23.01.2015 (Ex.P-1), Cheque Return Memo (Ex.P-2), Legal Notice along with postal receipt (Ex.P-3 & Ex.-4) and copy of cheque return register (Ex.P-6) of the concerned Bank (instead of ‘5’, it has been marked as ‘6’). 4. Learned trial Court, after evaluating the evidence on record, allowed the complaint case and convicted the accused/Respondent for the offence under Section 138 of the NI Act and sentenced him to undergo RI for 6 months with compensation of Rs.2,75,000/- with usual default stipulation against which, the accused/Respondent has preferred an Appeal, which has been allowed by the impugned judgment. Hence this Appeal. 4 5. Learned counsel for the Appellant/Complainant submits that the appellate Court has not appreciated the evidence and law in proper perspective though the accused/Respondent himself admitted the fact regarding purchase of tractor and its accessories. Further, the appellate Court, only on the technical ground that the Appellant/Complainant failed to prove onus with regard to service of legal notice upon the accused/Respondent, has acquitted the accused/Respondent, which is not justifiable. He further submits that since the service was properly effected on the address of the accused/Respondent, there is legal presumption under Section 27 of the 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 accused/Respondent, however, the trial Court has not appreciated the evidence in proper perspective and acquitted the accused/Respondent wrongly only on the technical ground, therefore, the judgment of acquittal deserves to be set-aside. 6. On the other hand, learned counsel for the accused/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 deserves to be dismissed. 5 7. Heard rival submissions of learned counsel for the parties and perused the record with utmost circumspection. 8. 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 (Ex.P-4) of the Post Office through which, he has sent legal notice (Ex.P-3). In the matter of Harman Electronics Private Limited & Anr vs. National Panasonic India Private Limited reported in (2009) 1 SCC 720, the only question which arises for consideration is that as to whether sending of notice would give rise to a cause of action for taking cognizance under the NI Act and after taking into consideration, the law laid down in the matter of K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr. reported in (1999) 7 SCC 510, finally, it was held that while issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, commission of offence completes. Giving of notice, therefore, cannot have any precedent over the service. Presumption raised in support of service of notice would depend upon the facts and circumstances of each case. Its application is on the question of law or the fact obtaining. Presumption has to be 6 raised not on the hypothesis or surmises but if the foundational facts are laid down therefor. It was materially observed therein as under:- “19. Presumption raised in support of service of notice would depend upon the facts and circumstances of each case. Its application is on the question of law or the fact obtaining. Presumption has to be raised not on the hypothesis or surmises but if the foundational facts are laid down therefor. Only because presumption of service of notice is possible to be raised at the trial, the same by itself may not be a ground to hold that the distinction between giving of notice and service of notice ceases to exist.” 9. Furthermore, in the aforesaid judgment, it was held that Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post and the relevant para i.e. 10 reads as under:- “10. We may, before proceeding to advert to the contentions raised by the parties hereto, refer to another decision of this Court in Dalmia Cement (Bharat) Ltd. vs. Galaxy Traders & Agencies Ltd. wherein this Court categorically held (SCC PP 469 – 70, para 7) "7. Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The dispatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. But as the presumption is a rebuttable one, he has two options before him. One is to concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendee's stand and take the risk for proving that he, in fact, received the notice. It is open to the despatcher to adopt either of the options. If he opts the former, he can afford to take appropriate steps for the effective service of notice upon the addressee. Such a course appears to have been adopted by the appellant Company in this case and the complaint filed, admittedly, within limitation from the date of the notice of service conceded to have been served upon the respondents." It was furthermore held: (p.470, para 8) "8. The payee or holder of the cheque may, therefore, without taking peremptory action in exercise of his right under clause (b) of Section 138 of the Act, go on presenting the cheque so as to enable him to 7 exercise such right at any point of time during the validity of the cheque. But once a notice under clause (b) of Section 138 of the Act is 'received' by the drawer of the cheque, the payee or the holder of the cheque forfeits his right to again present the cheque as cause of action has accrued when there was failure to pay the amount within the prescribed period and the period of limitation starts to run which cannot be stopped on any account. This Court emphasised that `needless to say the period of one month from filing the complaint will be reckoned from the date immediately falling the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires’.” 10. In this regard, in the matter of CC Alavi Haji vs. Palapetty Muhammed reported in (2007) 6 SCC 555 also, it was observed at para-17 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.” 11. Reverting to the facts of the present case, complainant Kamlesh Singh (CW-1) has deposed that he has sent legal notice (Ex.P-3) through registered mode and also produced registered 8 postal receipt (Ex.P-4) and in the cross-examination also, nothing has been elicited to disprove this fact. Further, there is a legal presumption in favour of the Complainant with regard to service of notice on the correct address. 12. The appellate Court while passing the judgment impugned, has referred the judgment passed in the matter of Milind Shripad Chandurkar Vs. Kalim M. Khan reported in (2011) 4 SCC 275), wherein it has been observed if the Appellant/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 ready reference, paras 26 & 27 of the aforesaid judgment are 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 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 9 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. " 13. Complainant Kamlesh Singh (CW-1) 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. If the Appellant/Complainant states that he is the Proprietor of the Firm, he is bound to produce some documentary evidence to connect himself with the said Firm and mere statement in this regard is not sufficient to meet the requirement of law. Hence, the findings recorded by the appellate Court in this regard are just and proper. 14. 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. 15. For the foregoing and in view of the aforesaid principles and considering the evidence available on record, this Court is of the view that the Appellant/Complainant has failed to establish his nexus with the Proprietorship of the Firm in accordance with law 10 and further the findings recorded by the appellate Court in this regard are just and proper. 16. Accordingly, the Appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) JUDGE Priya