1 2025:CGHC:49090 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 234 of 2019 1 - Dheeraj Kumar Jain S/o Hukmichand Jain, Aged About 36 Years, R/o Vardhman Hardware, Main Road, Dandilohara, District Balod, Chhattisgarh., District : Balod, Chhattisgarh ... Applicant (Accused) versus 1 - Mahaveer Tater S/o Ashok Chand Tater, Aged About 37 Years, R/o Dondilohara, District Balod Chhattisgarh., District : Balod, Chhattisgarh ... Non-applicant/Respondent (Cause-title taken from Case Information System) For applicant : Mr. Shikhar Bakhtiyar, Advocate. For Non-applicant/Respondent : Ms. Sonia Singh, Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 24-09-2025 1. The present Criminal Revision filed by the applicant under Section 397 and 401 of the Cr.P.C. against the judgment dated 28-01-2019 passed by the First Additional Sessions Judge, Balod in Criminal Appeal No.29/2018 whereby the appeal filed by the applicant against the judgment of conviction and sentence dated 14-08-2018 passed by the Judicial Magistrate First Class Dondilohara, District Balod in Complaint Case No.129/2018 has been partly allowed. 2. The learned trial Court has convicted the applicant under Section 138 of the Negotiable Instruments Act, 1881 (in short ‘the N.I. Act’) and sentenced with fine of Rs.6,00,000/-, in default of payment of fine the applicant was directed to undergo simple imprisonment for four months. It was also directed by the learned trial Court that out of Rs. 6,00,000/-, Rs.5,80,000/- shall be paid to Digitally signed by MOHAMMED AADIL KHAN Date: 2025.10.06 19:42:12 +0530 2 the complainant as compensation. In the appeal filed by the applicant before the learned First Additional Sessions Judge, Balod while maintaining the conviction of the appellant/applicant for the offence under Section 138 of the N.I. Act the payment of fine was set aside, however, the amount of cheque, i.e., Rs.5,80,000/- was ordered to be paid to the complainant by the appellant/applicant within two months, failing which the applicant/appellant was directed to undergo additional simple imprisonment for four months and appeal was partly allowed, which is under challenge in the present criminal revision. 3. The brief facts of the case, are that on 21-05-2018 the complainant filed a complaint case under Section 138 of the N.I. Act against the applicant with allegation that the complainant and the accused/applicant are well acquainted with each other and on 05-10-2016 the accused had taken loan of Rs.5,80,000/- cash from the complainant and an agreement was executed between them with respect to its repayment. In lieu of repayment of the borrowed amount the accused/applicant gave a cheque No.322735 dated 30-12-2017 for Rs.5,80,000/- which was of State Bank of India Branch Dondilohara. When the complaint deposited the said cheque in his bank account for its clearance on 16-03-2018, the same was dishonoured by the payee bank on the ground of fund insufficient in the bank account of the accused which was informed by the bank on 21-03-2018. The complainant issued a legal demand notice on 19-04-2018 which was served upon the accused/applicant on 23-04-2018, but the accused had failed to repay the amount of cheque and has not replied the legal demand notice. Thereafter, the complaint case was filed by the complainant. 4. The complaint case was registered on 02-06-2018 and notice was issued to the accused/applicant. After his appearance in the case the details of offence was explained on 21-06-2018. The evidence of the complainant witness was 3 recorded. The statement of accused under Section 313 of the Cr.P.C. have also been recorded and after completion of the trial the learned trial Court has convicted the applicant/accused and sentenced him as mentioned in the earlier part of this order. 5. The applicant had challenged his conviction and sentence passed by the learned trial Court by filing appeal before the learned Sessions Court. After hearing the parties, the learned First Additional Sessions Judge, Balod has passed the judgment on 28-01-2019 and while maintaining the conviction of the appellant set aside the sentence passed by the learned trial Court, however, the payment of amount of cheque, i.e., Rs.5,80,000/- is ordered by the appellate Court to be paid to the complainant failing which the accused was directed to undergo simple imprisonment for four months. The order passed by the learned First Additional Sessions Judge as well as the learned trial Court is under challenge in the present criminal revision filed by the accused/applicant. 6. Learned counsel for the applicant would submit that the applicant is innocent and has been falsely implicated in the offence. The complainant has failed to prove the legally recoverable debt against the accused and he has not filed any of his account book to prove that he had given loan to the accused/applicant. Since there is no legally recoverable debt, no presumption can be drawn in favour of the complainant, yet the learned trial Court as well as the appellate Court has convicted the accused/applicant by drawing presumption against the accused. He would further submit that the learned trial Court has imposed fine of Rs.6,00,000/- against the applicant, whereas he is empowered to impose fine upon the accused only upto Rs.10,000/-. The learned appellate Court though set aside the sentence of fine awarded by the learned trial Court, however, ordered for payment of amount of cheque to the complainant, which cannot be done in the appeal 4 filed by the accused against his conviction. The learned Sessions Court is not empowered to enhance the compensation while exercising powers of appellate Court. Therefore, there is material irregularity and illegality in the judgments passed by the learned both courts below and the same are liable to be set aside. Learned counsel for the applicant would rely upon the judgment passed by the Hon’ble Supreme Court in the matter of Sachin Vs. State of Maharashtra, reported in 2025 SCC OnLine SC 834. 7. On the other hand, learned counsel appearing for the respondent supported the impugned judgments and has submitted that vide order dated 15-07- 2025 the matter was referred for mediation before the Mediation Center of this Court where the parties have entered into a compromise and the settlement agreement was executed on 15-07-2025 by the parties whereby it was settled that the applicant/accused is ready and shall pay the amount of Rs.5,50,000/- in one or two installments to the complainant upto 15-09-2025, but the applicant has failed to comply with the conditions of the settlement agreement and has not paid any amount as agreed by him. She would also submit that by the said agreement the applicant had admitted his liability against the said cheque. The learned trial Court as well as the learned appellate Court has rightly considered the various aspects as well as the statutory presumption in favour of the complainant and has passed the judgments. The learned First Additional Sessions Judge has rightly exercised its jurisdiction and while setting aside the fine amount he has ordered for payment of amount of cheque to the complainant which is strictly in accordance with the provisions of Section 138 of the N.I.Act and Section 386 of the Cr.P.C. Therefore, this is no illegality or irregularity in the orders/judgments impugned and the criminal revision filed by the applicant is liable to be dismissed. 5 8. I have heard learned counsel for the parties and perused the record of the trial Court and had gone through the judgment passed by both the Courts below. 9. While examining the legality and propriety of the impugned orders/judgments while invoking jurisdiction under Section 397/401 of the Cr.P.C., this Court has gone through the judgments passed by both the Courts below. 10. It reveals from the judgment passed by the learned trial Court that the complainant has filed the deed of agreement dated 05-10-2016 Ex.-P/9 to show that the applicant had borrowed an amount of Rs.5,80,000/- from the complainant and in lieu of its repayment he issued the said post dated cheque of Cheque No.322735 dated 30-12-2017 for Rs.5,80,000/-. The said agreement could not be rebutted by the applicant in the cross-examination of the complainant. When the said cheque was deposited in the bank, the same was dishonoured by the payee bank on the ground of fund insufficient and the said fact has been proved by the complainant through bank memo Ex.- P/2 and Ex.-P/3. When the complainant received the information about dishonor of the cheque issued by the applicant he served a legal demand notice to the applicant through his counsel on 19-04-2018 which was served upon the applicant on 23-04-2018 which has also been proved by the complainant through the documents Ex.-P/6, P/7 and P/8, which also could not be rebutted by the applicant in the cross-examination of the complainant. After considering the entire facts and circumstances of the case and also the statutory presumption available under Section 118 of the N.I. Act in favour of the complainant the learned trial Court has held that the complainant is holder of the cheque in due course, there exist a legally recoverable debt against the applicant and in lieu of repayment of his legally recoverable debt he issued the cheque to the complainant which has been dishonoured by the payee bank on the ground of fund insufficient in his bank account. Though, 6 the applicant denied his liability, but he failed to prove his defence by leading cogent and clinching evidence. 11. The learned appellate Court has also considered the entire facts and circumstance of the case and has held that the cheque was issued by the applicant for discharge of his liability of legally recoverable debt and the said cheque was dishonoured by the payee bank and thus, the offence of the applicant has been established by the complainant by leading sufficient documentary evidence in the case. While considering the appeal of the applicant the learned appellate Court has considered that the fine amount or jail sentence is not mandatory in the offence under Section 138 of the N.I. Act and the purpose would be subserved if the applicant is directed to pay the amount of cheque to the complainant within a stipulated time and thereby the learned appellate Court has ordered for payment of amount of cheque, i.e., Rs.5,80,000/- to the complainant within two months from the date of that judgment, failing which the applicant was directed to undergo simple imprisonment for four months, in which this Court does not find any error or illegality in holding that the applicant is guilty for the offence under Section 138 of the N.I. Act. 12. The ground raised by the applicant that the learned First Additional Sessions Judge/appellate Court cannot enhance the sentence awarded by the learned trial Court as the learned trial Court has imposed fine of Rs.6,00,000/-, however the learned Sessions Court has enhanced the compensation of Rs.5,80,000/- in favour of the complainant. From perusal of the para 11 passed by the learned First Additional Sessions Judge Balod it transpires that that the sentence of fine awarded by the learned trial Court was set aside and it has been ordered to pay amount of cheque, i.e, Rs.5,80,000/- within two months from the date of that judgment to the complainant, failing which he shall undergo simple imprisonment for four months. It is not that the 7 fine amount is awarded or enhanced by the learned Sessions Court, however, the fine amount has been set aside and the order of payment of amount of cheque has been passed by the learned Sessions Court. The sentence for the offence under Section 138 of the N.I. Act provided that the accused 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 cheque or with both. Section 386 of the Cr.P.C. provided powers of the appellate Court and clause (b)(iii) of the same reads as under:- “386. Powers of the Appellate Court.─ xxxxxx xxxxxx (b) in an appeal from a conviction ─ xxxxxx xxxxxx xxxxxx xxxxxx (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;” 13. The conjoint reading of Section 138 of the N.I. Act and Section 386(b)(iii) of the Cr.P.C. it is quite vivid that while exercising these powers the appellate Court has directed the applicant to pay the amount of cheque, i.e., Rs.5,80,000/- within two months to the complainant which in the opinion of this Court does not suffer with any competency of jurisdictional error. The facts and consideration in the judgment of Sachin Vs. State of Maharashtra (supra) cited by the learned counsel for the applicant are different than the facts and consideration of the present case, therefore, no benefit can be extended to the applicant on the basis of the said judgment. 14. Further, it also transpires from the order sheet dated 15-07-2025 recorded in the present criminal revision that the parties were sent for mediation to the 8 Mediation Center of this Court where the settlement was arrived at between the parties and settlement agreement was executed on 15-07-2025 where the applicant was agreed to pay the amount of Rs.5,50,000/- through bank transaction or cash in one or two installments upto 15-09-2025, but undisputedly the applicant has not paid any amount pursuant to the settlement agreement dated 15-07-2025. Though the conditions of settlement agreement has not been complied with by the applicant, however, it can be taken as admission by his side towards his liability to pay the amount to the complainant. The applicant has not denied that he has not executed the said settlement agreement dated 15-07-2025. Considering all these aspects of the matter, this Court finds no illegality or infirmity in the impugned judgments passed by the trial Court as well as the First Additional Session Judge, Balod which warrants interference through the present criminal revision. Accordingly the present criminal revision is liable to be and is hereby dismissed. 15. Considering that the effect and operation of the impugned order/judgment dated 28-01-2019 was stayed by this Court vide order dated 07-03-2019, the applicant is granted one month’s time from today to deposit the amount of cheque before the learned trial Court as ordered by the learned First Additional Sessions Judge, Balod, failing which the applicant shall be liable to serve the sentence awarded by the learned First Additional Sessions Judge, Balod. Sd/- (Ravindra Kumar Agrawal) Judge Aadil