1 / 6 2025:CGHC:46990 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 199 of 2019 • Moh. Hanif Sakriya S/o Abdulgani Sakariya Aged About 55 Years R/o Village- Shriram Nagar, Kanker, Thana- Kanker, District- Uttar Bastar Kanker, Chhattisgarh. ... Applicant versus • Smt. Jaya Agarwal W/o Anil Agarwal Aged About 29 Years R/o Housing Board Colony, Thelkabod, Thana And Tahsil- Kanker, District- Uttar Bastar Kanker, Chhattisgarh. ... Respondent For Applicant : Mr. Nilkanth Malviya, Advocate For Respondent : None appeared, though served. Hon'ble Shri Parth Prateem Sahu, Judge ORDER ON BOARD 10/09/2025 1. Applicant has filed this revision challenging the legality, propriety and correctness of the impugned judgment dated 09.07.2018 passed in Criminal Appeal No. 15/2018 by the learned Sessions Judge, Utter Baster Kanker, (C.G.), whereby the learned Appellate Court has dismissed the appeal filed by the applicant and affirmed the judgment of conviction and order of sentence dated 14.05.2018 passed in Criminal Case No. 788/2017 by the learned Chief Judicial Magistrate Kanker, District- Utter Baster Kanker, C.G. by which applicant has been convicted and sentenced in following manner:- Conviction Sentence U/s 138 of the Negotiable Instruments Act, 1881 R.I. for 6 months and Fine of ₹ 2,50,000/-. PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 6 2. Facts of the case, in brief, is that the complainant and the accused were known to each other for last about ten years and shared a close familial relationship. The accused, who is also an insurance agent and had insured all the members of the complainant’s family, on 20.07.2016 borrowed a sum of ₹ 2,50,000/- (Rupees Two Lakh Fifty Thousand) from the complainant for repayment of his housing loan in respect of his house situated at Shriram Nagar, Kanker, assuring to repay the said amount within a period of two months. However, the accused failed to return the aforesaid loan within the stipulated period. On persistent demand by the complainant, the accused issued Cheque No. 024819 dated 28.06.2017 drawn on Union Bank, Kanker, for an amount of ₹ 2,50,000/- in favour of complainant. The said cheque, when presented by the complainant to his bank HDFC Bank, Kanker, on 25.08.2017, was dishonoured on 28.08.2017 and returned with the endorsement “insufficient funds.” Thereafter, a legal notice was sent to accused, however, despite due service of statutory notice issued by the complainant, accused failed to make payment of the cheque amount within the prescribed period. Hence, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. 3. Learned Trial Court, upon appreciation of the material on record and due consideration of the evidence adduced by the witnesses, vide judgment and order dated 14.05.2018, convicted the applicant under Section 138 of the Negotiable Instruments Act and imposed sentence as detailed in paragraph 1 of this judgment. Aggrieved by the said conviction and sentence, applicant preferred an appeal before the learned Appellate Court. However, the appeal came to be dismissed by the impugned order. Hence, the present revision has been filed. 4. Learned counsel for the applicant would submit that the learned Trial Court as well as the Appellate Court have failed to appreciate the evidence on 3 / 6 record in its proper perspective. Both the Courts below have proceeded on presumptions without considering the material contradictions and inconsistencies appearing in the case of the complainant. It is contended that the complainant has not been able to prove the existence of a legally enforceable debt or liability. The alleged loan transaction of ₹ 2,50,000/- is unsupported by any documentary evidence, such as loan agreement, receipt, or acknowledgment. Mere assertion of lending such a huge amount, without corroboration, ought not to have been accepted. The cheque in question was given by the applicant as security and not in discharge of any subsisting debt or liability. There are material defects regarding service of statutory notice, which have been overlooked. It is further submitted that both the Courts below have erred in law in not appreciating that the essential ingredients of Section 138 NI Act were not satisfied in the present case. Learned counsel, therefore, submits that the impugned judgment and order suffer from serious infirmities, and deserve to be set aside. 5. Learned counsel for respondent supports the impugned judgments passed by both the Courts below. 6. I have heard learned counsel for the parties and perused the material on record. 7. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the applicant, it is necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provision of Section 139 of the Act, which read as under:- “139. Presumption in favour of holder. - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.” 8. Hon’ble Supreme Court in the matter of M/s Kalamani Tex and Ors vs. P. Balasubramanian reported in (2021) 5 SCC 283 held as under. 4 / 6 “17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, para 36 : (2019) 2 SCC (Civ) 309 : (2019) 2 SCC (Cri) 40] , where this Court held that : (SCC p. 209, para 36) “36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.” 9. In similar matter of Sumeti Vij vs. Paramount Tech Fab Industries reported in (2022) 15 SCC 689, Hon’ble Supreme Court held in paras 18, 19, 20 as under : “18. Thereafter, two separate legal notices were served by the complainant which were duly received by the appellant and even after receiving the said notices, the appellant neither responded to the notices nor made any payment within the statutory period of fifteen days and only thereafter, two separate complaints were filed by the complainant under Section 138 of the Act against the appellant-accused. 19. There was no response by the appellant at any stage either when the cheques were issued, or after the presentation to its banker, or when the same were dishonoured, or after the legal notices were served informing the appellant that both the cheques on being presented to its banker were returned with a note that it could not be honoured because of “insufficient funds”. 20. That apart, when the complainant exhibited all these documents in support of his complaints and recorded the statement of three witnesses in support thereof, the appellant has recorded her statement under Section 313 of the Code, but failed to record evidence to disprove or rebut the presumption in support of her defence available under Section 139 of the Act. The 5 / 6 statement of the accused recorded under Section 313 of the Code is not a substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case of the accused. Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration.” 10.According to the statement of complainant Jaya Agrawal, as the applicant needed money for repayment of installments of his house, she had given an amount of ₹ 2,50,000/- to the applicant. After some time, when she demanded the said amount, the applicant issued a cheque in her name bearing cheque number 024819, for amount of ₹ 2,50,600, which is Ext. P-2. Said cheque was deposited by the complainant to her bank HDFC Bank, Kanker, on 25.08.2017, deposit receipt of which is Ext. P-1, which was dishonoured on 28.08.2017 and returned with the endorsement “insufficient funds.”. When the cheque was dishonored by the Bank, she sent a legal notice through advocate to the applicant vide Ext.P-4. 11. In this case, appellant/accused has not denied his signature on the cheque, hence, it is proved that the cheque was issued by the appellant/accused. 12.During cross-examination, the defence suggested that the cheque was given only as a guarantee and that the loan amount had already been repaid, but the complainant denied the suggestion. No evidence has been brought on record to show that the complainant misused the cheque. The applicant also failed to produce any bank record to establish repayment. Hence, the plea of fraudulent use of the cheque is not acceptable, as the complainant has proved that the cheque was issued towards the loan advanced, and repayment of the cheque amount by the accused has not been proved. 13.As far as the notice issued to the applicant is concerned, the respondent/complainant has produced the notice Ext. P-4 and its postal receipt is Ext.P-5, from which, it is clear that the registered notice was sent 6 / 6 on 06.09.2017. Hence, it is proved that the complainant has sent notice Ext.P-4 and P-7 to the applicant. 14.Accused-applicant contended that the complainant had not produced bank documents to prove lending of the cheque amount and that the case was based on false documents. However, the burden to prove that the cheque was not issued towards any debt or liability lay on the accused, which he failed to discharge. There is no evidence to suggest that the complainant fabricated any document. On the contrary, it is proved that the cheque issued by the accused was dishonoured due to insufficient funds. Thus, in view of Sections 139 and 146 of the Negotiable Instruments Act and the evidence on record, learned Trial Court as also the appellate court has rightly held the accused-applicant guilty under Section 138 NI Act, and no error is found in his conviction. 15.However, considering that the conviction of applicant is under Section 138 of the NI Act, even if this Court on 22.07.2025 observed that there is no order of suspension of sentence and stay on file amount, this revision is filed through legal aid, I am of the view that the sentence of fine will serve the purpose. From the judgment of Trial Court it is reflecting that the applicant already served jail sentence of 18 days during trial. Hence, the jail sentence is reduced to the period already undergone and sentence of fine shall remain intact as ordered by the Trial Court. 16. Accordingly, the present Criminal Revision is allowed in part. Sd/- (Parth Prateem Sahu) pwn JUDGE