1 2025:CGHC:55600 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 150 of 2020 1 - Ramshankar Lal Shrivas S/o Late Shivcharan Shrivas Aged About 62 Years Resident Of Kelkar Para, Indira Gandhi, Ward No. 20, Raipur, District Raipur Chhattisgarh. ... Appellant / Complainant versus 1 - Shankar Lal Shrivas S/o Late Shri Jeevan Lal Shrivas Aged About 65 Years Resident Of Behind Gajanand Mandir, Tatyapara, Raipur, District Raipur Chhattisgarh. 2 - State Of Chhattisgarh Through District Magistrate Raipur, District Raipur Chhattisgarh. ... Respondents (Cause title, as taken from CIS) For Appellant : Mr. K.P.S. Gandhi, Advocate For Respondent No.1 For Respondent No.2 /State : : Mr. Achyut Tiwari, Advocate Mrs. Mukta Tripathi, Panel Lawyer. (Hon’ble Shri Justice Naresh Kumar Chandravanshi ) Order on Board 14/11/2025 1. This acquittal appeal has been preferred by the appellant/complainant under Section 378(4) of the CrPC, challenging the judgment dated RUKHSAR BANO Digitally signed by RUKHSAR BANO Date: 2025.11.20 13:20:50 +0530 2 28.01.2020 passed by the First Upper Sessions Judge, Raipur, District Raipur, Chhattisgarh (henceforth referred to as ‘Appellate Court’) in Criminal Appeal No.104/19, whereby the judgment of conviction and order of sentence dated 25.01.2019 passed by the Judicial Magistrate First Class, Raipur, District Raipur (henceforth referred to as “JMFC”) in Complaint Case No.2514 / 15 has been set aside and the accused has been acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (henceforth referred to as “NI Act”). By the said judgment dated 25.01.2019, the learned JMFC has convicted the respondent No.1 herein/ accused under Section 138 of the NI Act and sentenced him as under :- Sr. No. Cheque No. and amount Jail Sentence Compensation Default Stipulation 1. 409729, Rs.1,40,000/- SI for 03 months Rs.1,50,000/-, u/S 357 (3) of the CrPC SI for 01 month 2. 409730, Rs.2,00,000/- SI for 03 months Rs.2,30,000/-, u/S 357 (3) of the CrPC SI for 01 month All the substantive jail sentences have been directed to run concurrently. 2. Facts of the case, in brief, are that, the appellant / complainant filed a complaint under Section 138 of the NI Act against the respondent No.1/accused stating inter alia that the respondent had taken loan from him to the tune of Rs.4,00,000/- and for repayment of the same, he delivered three cheques bearing No.409729, 409730 & 409737 (Ex. P- 1, P-3 & P-5 respectively) payable at the State Bank of India, Phaphadih, Raipur. All three cheques were presented before the bank, 3 but the same were returned with a note ‘insufficient fund’, as such, the appellant sent a legal notice (Ex.P-7) dated 09.10.2015, which was served to the respondent No.1, despite that, the cheque amount was not paid by him, therefore, the appellant / complainant filed a complaint case under Section 138 of the NI Act. 3. Learned trial Court, after considering the evidence brought on record, acquitted the respondent No.1 pertaining to Cheque No.409737 (Ex.P- 5), but convicted him under Section 138 of the NI Act for Cheques No. 409729 & 409730 (Ex.P-1 & Ex.P-3 respectively). An appeal preferred by respondent No.1/ accused Shankar Lal Shrivas bearing Appeal No.104/19 was allowed by the appellate Court by setting aside the judgment of conviction of respondent No.1/accused holding therein that the complaint filed by appellant /complainant is barred by limitation. Being aggrieved, the appellant has preferred instant appeal. 4. Learned counsel for the appellant/complainant would submit that respondent No.1/accused has given filled cheques except date. In both the cheques i.e. Ex.P-1 & Ex.P-3, date was filled by complainant and submitted in the bank, which were dishonoured. He would further submit that though both the cheques were given in the year 2009 & 2011 respectively, which has been accepted by complainant in his cross-examination, but respondent No.1 /accused had also executed affidavits Ex.P-10 & Ex.P-11 in the years 2009 & 2011 respectively, in which, he had admitted that he will return the amount from time to time, therefore, limitation period ought to have been treated to be started when cheques Ex.P-1 & P-3 were bounced. In this regard, he placed reliance in the case of Sumit Singla vs. Kala Mandir Saree and 4 Jewellers, I.L.R. Punjab and Haryana 2022 (2) (Page No.1014) and also in the case of K. Hymavathi vs. The State of Andhra Pradesh & Anr., 2023 LiveLaw (SC) 752. Referring to the judgment of the Apex Court in the case of Bir Singh Vs. Mukes Kumar, (2019) 4 SCC 197, learned counsel submitted that even undated and unfilled cheque signed by the accused is sufficient to raise presumption in favour of the complainant under Section 138 of the NI Act. He next submitted that the finding recorded by the learned appellate Court that complaint filed by the complainant is barred by limitation, is perverse to the law as provided under Section 25 (3) of the Indian Contract Act, 1872 (for short ‘the Act, 1872’). He lastly submitted that impugned judgment of learned appellate Court suffers from perversity and illegality, hence, he prays that the appeal may be allowed and impugned judgment of conviction passed by the Judicial Magistrate First Class/trial Court be restored by allowing instant appeal. 5. Per contra, learned counsel appearing for respondent No.1 / accused would submit that the appellant /complainant himself has admitted in his cross-examination that for the said loan, the respondent No.1 has executed affidavits (Ex.P-10 & Ex.P-11), in which, no specific date or period was mentioned for return of the said loan amount. Though both the cheques, i.e., Ex.P-1 & Ex.P-3 were given by accused, which also contain his signature, but the date was not filled by him, therefore, the aforesaid cheques given by him cannot be treated as acknowledgment under Section 18 of the Limitation Act, 1973 (hereinafter referred to as, ‘Act, 1973’). He would further submit that since affidavits Ex.P-10 & P- 11 were executed on 24.08.2009 & 08.02.2011 respectively by accused and undated cheques were given by him to the complainant, as such, 5 learned appellate Court has rightly held that the complaint filed by the complainant was barred by limitation, as on the date of filing of said complaint, no legally enforceable debt was existing against accused. He further submitted that case laws referred by learned counsel for the appellant are not applicable in fact situation of the instant case, hence, the appeal is liable to be rejected. 6. I have heard learned counsel for the parties and perused the material available on record along with records of both the Courts below. 7. The appellant/complainant himself has admitted in his cross- examination, in para 15, that alleged two cheques Ex.P-1 & Ex.P-3 were issued by accused in the year 2009 & 2011 respectively. He has also admitted that date in both the cheques was not filled by the accused, rather after filling the date by complainant, those cheques were deposited for encashment. The respondent/accused has also stated in his cross-examination that appellant /complainant has exhibited Ex.P-10 & Ex.P-11, which are affidavits executed on 24.08.2009 & 08.02.2011 respectively by accused in his favour wherein he has admitted borrowing money of Rs.1,40,000/- & Rs.2,00,000/- from complainant. Both the documents do not contain any specific date as last date for return of the said loan amount, therefore, on the strength of Ex.P-10 & Ex.P-11, limitation of three years shall be started from the date of execution of aforesaid two documents i.e. 24.08.2009 & 08.02.2011, as has been provided under Section 19 of the Act, 1963, which was completed on 23.08.2012 & 07.02.2014 respectively, but instant complaint was filed by appellant on 07.11.2015, which is after more than three years from the execution of promissory notes Ex.P-10 & Ex.P-11. 6 8. Appellant/ complainant himself has admitted in para 15 that the cheques were not issued by respondent No.1/accused in the year 2015. He has also admitted that in both cheques, date was not filled by accused, rather after filling date by himself (i.e. complainant), cheques were deposited by him. If date in both the cheques would have filled by the accused, then it would be treated as acknowledgment under Section 18 of the Act, 1963, but the dates were filled by the appellant himself, as such, it cannot be treated as acknowledgment under aforesaid provision, therefore, issuing two cheques (Ex.P-1 & Ex. P-3) by accused will not extend starting period of limitation of the loan amount. 9. Though, even undated and unfilled cheques signed by the accused/drawer are sufficient to raise presumption in favour of complainant, if it is filled by complainant/drawee and the same were bounced, in favour of the complainant under Section 138 of the NI Act, but in instant case, having considered Ex.P-10 & Ex.P-11 i.e. promissory notes, which do not contain any specific date for return of the loan amount, as such, period of limitation will start in instant case from the date of execution of aforesaid two documents by the respondent No.1/ accused. In such situation, since date in both the cheques was not filled by the accused, rather it was filled by the complainant himself, hence, it also does not amount to the acknowledgment, as provided under Section 18 of the Act, 1963. 10. In the case of Sumit Singla (supra), no such promissory note was executed by the respondent/accused and in the case of K. Hymavathi (supra), specific date was mentioned in the promissory note for return of the loan amount, which is not mentioned in Ex.P-10 & Ex.P-11 of the 7 instant case, thus, fact situation of both the cases is not similar to the case in hand. Hence, aforesaid case laws relied upon by learned counsel for the appellant are not favourable to him. Considering the aforesaid fact, Section 25 of the Act, 1872 is also not found to be helpful to the appellant in instant case. 11. In view of the above discussion, in the considered opinion of this Court, it is found that learned appellate Court has not committed any error in setting aside the judgment of conviction passed by the JMFC, hence, impugned judgment passed by learned First Upper Sessions Judge, Raipur is affirmed. 12. In view of the above, I do not find any merit in the instant acquittal appeal, hence the same is dismissed. No order as to cost(s). 13. Record of the Courts below be returned forthwith along with a copy of this judgment. Sd/- (Naresh Kumar Chandravanshi) Judge Rukhsar