1 2025:CGHC:10721 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRR No. 300 of 2025 Munna Prasad Sharma S/o Late Vijay Prasad Sharma Aged About 60 Years R/o Qr. No. 295- A, Kwari Road Panderdalli Dallirajhara District- Balod (C.G.) ... Applicant(s) versus Shrikant Jha S/o Late Radheshyam Jha Aged About 38 Years R/o Rajhara Baba Road Ward No. 1 Dallirajhara District - Balod (C.G.). --- Respondent For Applicant : Mr. Shrawan Kumar Chandel, Advocate. Hon'ble Shri Justice Arvind Kumar Verma Order on Board 05/03/2025 1. Applicant has filed this instant revision petition under Section 438 read with Section 442 of the BNSS, 2023 with following prayer: “that this Hon'ble Court may kindly be pleased to set- aside the impugned judgment dated 04.12.2024 and restore the complaint case to the file of learned JMFC, 2 Dallirajhara for further proceedings in accordance with law, in the interest of justice. 2. Relevant facts for disposal of this petition are that applicant and respondent are well known to each other, respondent has obtained the amount of Rs.9,13,000/- from the applicant for providing a job to his son, but failed to provide the job, therefore, appellant demanded his money back, to which, respondent has given cash Rs. 3,00,000/- and also given the cheques of the Axis Bank, Dallirajhara Branch, (bearing cheque no.113310 amounting to Rs. 3,00,000/- dated 18.08.2023 & cheque no.113313 amounting to Rs. 3,13,000/- dated 23.06.2023). When the applicant has deposited the said cheques in the Bank on 19.08.2023 for disbursement of amount, said cheques got dishonoured with a tip of "payment stopped by drawer", thereafter, the applicant has sent the legal notice to the respondent through his Counsel, but the respondent did not pay the cheque amount, hence, applicant filed the complaint case against the respondent under Section 138 of Negotiable Instruments Act before the trial Court on which after serving notice, the respondent recorded his appearance. Based on the pleadings and material available, on 23.03.2024 learned trial Court has framed the charges against the applicant under Section 138 of N.I.Act. Aggrieved by which, respondent/accused filed a revision before the Session Judge, Balod and vide impugned order dated 04.12.2024, the learned revisional court has set-aside the order of trial court dated 23.03.2024 and discharged the respondent from the charge U/s 138 3 of N.I. Act. Hence this revision petition. 3. Learned counsel for the applicant-complainant submits that impugned order dated 04.12.2024 is perverse and contrary to the law. Learned revisional court has failed to appreciate the fact that at the time of framing of chares or taking cognizance of offence, the Court should not consider the merits of the case and only on the basis of prima facie material available on record, the Court may frame the charges or take the cognizance of offence. There are sufficient material available on record to take the cognizance of offence under Section 138 of N.I.Act against the respondent- accused, therefore, learned trial Court has rightly taken the cognizance of offence U/s 138 of N.I. Act against the respondent. Learned revisional court erred in holding that the cheques in question were not issued by the respondent for payment of any legal debt or liability. The issue regarding issuance of cheques in question can only be decided after recording of evidence on merits. The respondent has obtained the amount from the applicant on the assurance that he will provide the job to his son, but no such job was provided to his son, therefore, respondent has given the cheques for return of said amount, thus, said cheques were issued for payment of legal debt/liability. Learned Court below failed to appreciate the material/evidence in its proper perspective and recorded a wrong finding, hence, applicant has come up before this Court with aforesaid prayer. 4. Heard learned counsel for the applicant and perused the impugned 4 order. 5. For ready reference, Section 138 of the NI Act reads as under: “138. Dishonour of cheque for insufficiency, etc., of funds in the account.— Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and 5 (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.” 6. It is crystal clear from Section 138 of NI Act that the debt or liability is for legal debt or legal liability and not for the illegal debt or illegal liability, however, as per facts of the case, respondent has obtained the amount from the applicant for providing a job to his son in an illegal manner and when he failed to provide the job, he has given some cash amount as well as the cheques in question. Since, there is violation of mandatory provision of Section 138 of the NI Act, Section 138 would not be applicable in this case. 7. In view of above discussions/reasons, this Court is of the considered view that the finding recorded by the revisional court of acquitting the respondent/accused from the charge under Section 138 of NI Act is in accordance with law and there is no need to interference in the impugned order. 8. Accordingly, present revision being devoid of merits is liable to be and is hereby dismissed. CC as per rules. Sd/- (Arvind Kumar Verma) Judge J/-