1 2025:CGHC:14750 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 72 of 2019 1 - Narendra Kumar Tandan S/o Shri Madan Lal Tandan Aged About 35 Years R/o Behind Gurughashidas Temple, Police Station- Tarbahar, Civil And Revenue District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh ... Appellant versus 1 - Ku. Sushma Pathak D/o Laxmi Prasad Pathak Aged About 26 Years R/o Behind Kaushik Fabrication, Maharana Pratap Nagar, Near Yadunandan Nagar, Tifra, Police Station- Sirgitt, Dstrict- Bilaspur, Chhattisgarh, Present Address- Sushma Boutique, 1st Floor Of Rajeev Plaza, Beside Doctor Sandeep Tiwari, Bus Stand, Police Station- Tarbahar, District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh ... Respondent For Appellant : Mr. Chandrikaditya Pandey on behalf of Mr. Dharmesh Shrivastava, Advocate For Respondent : Mr. Raj Kumar Gupta, Advocate. Hon'ble Shri Justice Narendra Kumar Vyas Order On Board 27.03.2025 1. This appeal has been preferred by the appellant assailing the order dated 30.01.2016 passed by the learned Judicial Magistrate First Class, Bilaspur (C.G.) in Complaint Case No. 3613/2014 by which the KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.04.15 15:09:39 +0530 2 complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (for short “the NI Act, 1881”) has been dismissed and the accused has been acquitted. 2. The brief facts as reflected from records are that the complainant filed a complaint under Section 138 of the NI Act, 1881 alleging that the complainant and accused are acquainted to each other. The accused was working in boutique and used to purchase seized gold from the Manipuram Gold Loan Company. She took loan of Rs. 1 Lakh from the complainant by saying that she wanted to purchase seized gold from Manipuram Gold Loan Company and thereafter, to pay the aforesaid amount of Rs. 1 Lakh she gave a cheque of Rs. 1 Lakh of IDBI Bank, Bukhari Building 17/2 Agrasen Chowk, Link Road, Bilaspur (CG) bearing cheque no 017668 amounting to Rs. 1 Lakh dated 12.01.2014 to the appellant/complainant. The aforesaid cheque was deposited to Axis Bank Ltd. Bilaspur maintained in the bank account of the appellant/complainant but the said cheque was dishonored and returned back to the appellant/complainant with endorsement that the account has already been closed. The appellant/complainant sent a legal notice to the accused/respondent on 04.03.2014 by a registered post which was attempted to be served on 05.04.2014, 07.04 2014 and 09.04.2014. The respondent/accused refused to receive the notice then the same was returned back to appellant/complainant on 17.04.2014. The respondent/accused did not return the amount which was necessitated him to file complaint under Section 138 of the Negotiable Instruments Act, 1981 before the learned trial Court. 3. The complainant to substantiate his case examined himself by way of affidavit as provided under Section 145 of the NI Act and exhibited 3 documents; the cheque (Ex.P/1), forwarding memo (Ex.P/2 and Ex.P/3), notice to accused (Ex.P/4), postal receipt (Ex.P/5) and returned envelop (Ex.P/6). The witness was extensively cross- examined by the accused wherein in para 8 he has admitted that the forwarding memo does not contain seal and signature. He has also admitted that he does the work of accounting and he is aware of the transaction maintained by him. He has also admitted that in the Ex.P/1, his name and the amount has been written in different handwriting. The complainant has also examined the Assistant Branch Manager of the Bank who appeared along with the documents pertaining to the closure of the account, specimen signature of the accused available with the bank and other details from Ex.P/7 to Ex.P/10. The witness has admitted in his cross-examination that there is no mention of dishonoring of questioned cheque in the record. The accused examined herself under Section 313 of the Cr.P.C and stated that she has been subjected to false implication, she has issued self cheque, the complainant has struck down the word ‘self’ and written his name ‘Naredra Tandan’. Considering the evidence and materials on record, learned trial Court dismissed the complaint and acquitted the accused. Being aggrieved with this order, the complainant has preferred the present acquittal appeal. 4. Learned counsel for the appellant would submit that though the learned trial Court has admitted that the cheque was dishonored and it has been returned back with endorsement that the bank account has been closed, still it has dismissed the complaint, therefore, the order dated 30.01.2016 is illegal, erroneous and contrary to law which is liable to be quashed and would pray for allowing the appeal. 4 5. On the other hand, learned counsel for the respondent opposing the contention made by the appellant would submit that the complainant has done overwriting on the cheque as she had given self chque. The complainant has struck down the word ‘self’ and written his name, as such, he has done manipulation with the cheque and this factual matrix has also been admitted by the complainant in paragraph 10 of his evidence, therefore, the learned trial Court has rightly dismissed the complaint filed by the complainant, which is just and proper which does not warrant any interference by this Court and would pray for dismissal of the appeal. 6. I have heard learned counsel for the respondent and perused the documents placed on record with utmost satisfaction. 7. From the submission made by the parties, the point emerged for consideration of this Court is whether the finding recorded by the learned trial Court is legal and justified? 8. This Court already extracted evidence in the foregoing paragraphs. From the evidence it is quite vivid that the complainant has categorically stated that the accused has taken loan to purchase seized gold from the Manipuram Gold Loan Company and despite this learned trial Court has dismissed the complaint without any finding whether the complainant is able to prove that cheque was given towards any debt or liability which is the basic ingredient to attract Section 138 of the NI Act. Since the impugned order does not deal with the real issue which is required to be dealt by the trial Court, needs interference by this Court. 9. The Hon’ble Supreme Court in case of Dattatraya vs. Sharnappa 5 reported in 2024 (8)SCC 573 has held in paragraphs 27 as under:- “27. A comprehensive reference to the Sections 118, 139 and140 of the NI Act 1881 gives birth to a deemed fiction whichwas also articulated by this Court in K.N. Beena v. Muniyappan and Another as follows:“ Under section 118, unless the contrary was proved, it is to be presumed that the negotiable instrument (includinga cheque) had been made or drawn for consideration. Under section 139 the court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, ofa debt or liability. Thus, in complaints under section 138, the court has to presume that the cheque had been issued for a debtor’s liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. The Supreme Court in the 9 (2001) 8 SCC 458.case of Hiten P. Dalal v. Bratindranath Banerjee has also taken an identical view.” 10. Further, learned trial Court has recorded its finding that the demand notice has been sent on the basis of a document in which seal and signature of the bank are not available, according it has recorded its finding that it cannot be presumed that the cheque was dishonoured Since the trial Court has not dealt with the issue whether the cheque was given towards debt or liability all the subsequent finding lost its significance. Therefore, the matter is required to be considered by the learned trial Court afresh to first decide whether the cheque was given for any debt or liability and then decide the subsequent issues which may crop up for proper adjudication of the case including the effect of seal and signature in the cheque forwarding memo and closure of the bank account on 11.01.2014. 11. Accordingly, the complaint case is restored to its original number and the impugned order dated 30.01.2016 is quashed. The trial Court is directed to decide the same afresh on merits in accordance with law. The appellant and the respondent will be at liberty to examine the witnesses to substantiate their respective stand before the trial Court. 6 12. The parties are directed to appear before the concerned court on 10.06.2025 for further proceeding. The Registry is directed to transmit the records to the trial Court immediately. 13. With the aforesaid observation and direction, the instant appeal is allowed in part. Sd/- (Narendra Kumar Vyas) Judge Deshmukh