1 2025:CGHC:43956 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 54 of 2020 Smt. Komal Aartwani W/o Raja Aartwani, Aged About 40 Years Profession - Housewife, R/o Meera House No. 35/99, In Front Of Dr. Farishta Nursing Home, Katora Talab, Police Station Civil Line, Raipur Chhattisgarh. (complainant). ... Appellant. versus Dayal Kumar Shadija S/o Late Ashok Shadija, Aged About 35 Years Profession - Private Job, R/o Near Sindhi Gurudware, Lakhenagar, Police Station Azad Chowk, Raipur, Tehsil And District - Raipur Chhattisgarh. (accused) ... Respondent(s) For Appellant : Shri Tejaswa Deo appears on behalf of Shri Vinod Kumar Pandey, Advocates. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 29/08/2025 1. This Acquittal Appeal has been preferred against the judgment dated 12.12.2018 passed by the Second Additional Sessions Judge, Raipur Chhattisgarh in Criminal Appeal No.326/2018 which, in turn arose out of the judgment dated 19.09.2018 passed by the Judicial Magistrate First Class, Raipur C.G. in Criminal Complaint case No.559/2015. AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.09.01 10:53:16 +0530 2 2. By the impugned judgment, learned appellate Court has allowed the appeal preferred by the respondent/accused and acquitted him of the charge under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter “the Act, 1881”) and has set aside the judgment dated 19.09.2018 passed by JMFC, Raipur whereby, respondent/accused was convicted of the said charge and sentenced to undergo rigorous imprisonment for six months and to pay a fine/compensation of Rs.2,20,000/-, in default of payment of fine/compensation, to further undergo simple imprisonment for two months. 3. Brief facts of the case are that appellant/complainant preferred a complaint case on 03.02.2015 making averments, inter alia, that her husband and respondent/accused are familiar to each other and for the purposes of business, respondent/accused demanded cash loan from the complainant a few months prior to filing of the complaint. Appellant gave Rs.2,00,000/- to the respondent/accused. For the repayment of the said amount, respondent/accused issued a cheque (Ex.P/1) dated 06.12.2014. When the said cheque was presented for encashment, the same got dishonoured on account of insufficient funds vide Bank memo (Ex.P/2). Thereafter, legal notice (Ex.P/3) was sent through registered post (Ex.P/4) to respondent/accused. Respondent/accused also sent a reply (Ex.P/5) and denied the transaction and stated that abuse of blank cheque has been performed. Thereafter, a complaint case was filed. 4. During trial, Respondent/accused abjured his guilt and claimed to be tried. 3 5. Complainant examined herself and her husband Raja Aartwani as CW-2 and exhibited five documents namely Cheque (Ex.P/1), Cheque Return Memo (Ex.P/2), Legal Notice (Ex.P/3) and postal receipt (Ex.P/4), reply by Respondent/accused (Ex.P/5). 6. In the statement recorded under Section 313 Cr.P.C., respondent/accused pleaded false implication and did not adduce any defence evidence. 7. Learned trial Court, after evaluating the evidence, convicted and sentenced the respondent/accused as mentioned in para 2 of this judgment. Against which, he preferred an Appeal which was allowed by the impugned judgment. Hence this Appeal. 8. Counsel for the appellant submits that there is a legal presumption under Section 139 of the Act, 1881 that valid consideration has been passed which has not been rebutted by the respondent/accused. He places reliance in the judgment passed in the matter of Bir Singh vs. Mukesh Kumar {(2019) 4 SCC 197} by the Hon’ble Supreme Court and prays to allow the Appeal and to convict the respondent/accused. 9. I have heard learned counsel for the appellant and perused the record carefully. 10.In the matter of Budh Singh vs. State of U.P. [(2006) 9 SCC 731], the Hon’ble Supreme Court held that in a matter of Appeal against acquittal, the High Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidences on record so as to arrive at a finding as to whether the views of the trial Court were 4 perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. 11.Further, in the matter of V.N. Ratheesh vs. State of Kerala, (2006) 10 SCC 617, the Hon’ble Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Hon’ble Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is further held that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offence or not. It was also observed that the principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and 5 convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 12.Recently, in the matter of Constable 907 Surendra Singh & another vs. State of Uttrakhand, 2025 INSC 114, the Hon’ble Supreme Court has observed that the interference with the finding of acquittal recorded by the trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 13. In the matter of Rajesh Jain Vs. Ajay Singh, (2023) 10 SCC 148, the law relating to the effect of legal presumption as per Section 118 and Section 139 of the NI Act has been clarified. As per Section 118 of the NI Act it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration and as per Section 139 of the Act “unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. Both the presumptions are rebuttable in nature. The relevant paras of the aforesaid judgment i.e. 33 to 44 is reproduced hereunder:- “33. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates 6 that “unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability”. It will be seen that the “presumed fact” directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, not repeated- reference to one can be taken as reference to another” “34. Section 139 of the NI Act, which takes the form of a “shall presume” clause is illustrative of a presumption of law. Because Section 139 requires that the Court “shall presume” the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase “unless the contrary is proved”.” “35.The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel & Drum Mfg. v. Amin Chand Payrelal] [(1999) 3 SCC 35]” “36.Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar (2019) 4 SCC 197]. 7 Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.” “37. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.” “38.John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law on Evidence states as follows: “The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption ‘disappears as a rule of law and the case is in the Jury's hands free from any rule.” “39.The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of “preponderance of probabilities”, similar to a defendant in a civil proceeding. [Rangappa vs. Sri Mohan (AIR 2010 SC 1898)]” 8 “40.In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words “until the contrary is proved” occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa v. Mudibasappa (AIR 2019 SC 1983); see also Kumar Exports v. Sharma Carpets (2009) 2 SCC 513]” “41.In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused’s case may be even fifty-one to forty- nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 CrPC statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was “no debt/liability”. [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513]” “42.The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or 9 admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.” “43.The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundan Lal case v. Custodian (Evacuee Property), AIR 1961 SC 1316 when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Sections 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.” “44.Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption “disappears” and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both 10 parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa v. Mudibasappa, AIR 2019 SC 1983; see also, Rangappa v. Sri Mohan (2010) 11 SCC 441]” 14. Reverting back to the facts of the present case, in the complaint, the complainant has stated that a few months ago of filing the complaint, she had given cash loan to the respondent/accused but in the cross- examination, she admits that the said period could be two-three years also. Complainant has also failed to state that on which date, time and place, she has advanced the loan. Further, she admits that at the time of advancing loan, no document has been executed or obtained from the accused. Complainant is also not aware as to whether the said loan transaction has been taken into account in her Income Tax Return or not and she has not filed any ITR. Complainant has also failed to prove the source of money though which, she has given the loan. 15.There are material contradictions in the statement of complainant and her husband, as complainant deposed that she has given the amount to respondent/accused from her husband. Whereas, her husband deposed that he obtained the money from his wife and asked her to give the amount on loan to the respondent/accused. Husband of the complainant (CW-2) is also not aware about the avocation of respondent/accused. Although, he has deposed that accused is his friend and used to purchase shoes and slippers from his shop in retail and respondent/accused demanded loan to start business of Manihari. When it was confronted to husband of the complainant that respondent/accused is an established 11 businessman and is running shop at Banjari chowk Raipur, he stated that he is not aware of it. A defence has been taken that the accused has handed over the cheque to one Satyen Ahuja who in turn handed over the said cheque to the complainant. 16. Considering the statement of complainant and her husband, it appears that there might be possibility of abuse of the cheque and the respondent/accused has successfully rebutted the presumption. Hence, this Court is of the opinion that view taken by the appellate Court is possible one and the impugned judgment warrants no interference. 17.Resultantly, this Appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Avinash