Ambikapur, Police Station Gandhinagar, District Surguja (C.G.) v. Rambali Gupta, S
Case Details
1 2025:CGHC:4952 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on: 27.11.2024 Judgment Delivered on: 28.01.2025 ACQA No. 58 of 2011 Sadashiv Brothers Ambikapur, through its Proprietor Rajendra Kumar Pathak S/o Late Sadanand Pathak, aged about 40 years, R/o near Holycross School, Manendragarh Road, Ambikapur, Police Station Gandhinagar, District Surguja (C.G.) ... Appellant Versus Rambali Gupta, S/o Rambilas Gupta, aged about 55 years, R/o Village Gauripur (Nakro), Post Ranhat, Police Station Chalgali, District Surguja (C.G.) ... Respondent For Appellant For Respondent : :
Legal Reasoning
Ms. Anushka Sharma, on behalf of Mr. Manoj Paranjpe, Advocate. Mr. Sushil Dubey, Advocate. Hon'ble Smt. Justice Rajani Dubey CAV Judgment 1. This acquittal appeal is filed under Section 378 (4) of Cr.P.C by the appellant/complainant against the impugned judgment dated 08.09.2010 passed by the Chief Judicial Magistrate, Ambikapur, District Surguja (C.G.) in Complaint Case No. 134/2009, whereby 2 the learned trial Court has acquitted the respondent/accused of the charge for commission of offence under Section 138 of the Negotiable Instruments Act, 1881. 2. Brief facts of the case are that the appellant/complainant filed a complaint on 15.05.2009 under Section 138 of the Negotiable Instruments Act, 1881 before the learned trial Court against the respondent/accused. The Chief Judicial Magistrate, Ambikapur vide its order dated 08.09.2010 has acquitted the accused/respondent for an offence punishable under Section 138 of the NI Act. The complaint was filed inter alia on the grounds that the respondent has purchased one Bajaj Tempo Balwan Tractor model 400 along with tractor parts, hood, Hydrologic Kit from the agency of the appellant/complainant on 05.01.2007 and amount to the tune of Rs. 1,10,693.00 was not paid to him. After several requests, on 22.12.2007 the accused/respondent has issued a cheque bearing No. 517003 in favour of the appellant/complainant before the Central Bank Branch Namnakala on 22.12.2007 for encashment. It is submitted that on 18.03.2008 the concerned bank has returned the cheque due to insufficiency of fund in the account of accused/respondent. This intimation was received by the complainant on 24.03.2008. The cheque was marked as Ex. P/01. The cheque was returned to the complainant on 24.03.2008 along with the cheque return memo Ex. P/02. The complainant then issued a legal notice to the accused/respondent by registered post on 29.03.2008 and the same was received by 3 the accused. The receipt of the notice was marked as Ex. P/04 and the copy of the notice was marked as Ex. P/03, but despite service of the notice, the amount has not been paid by the accused/respondent within stipulated period. However, the respondent/accused denied the issuance of cheque although it bears the signature of accused/respondent and it was also alleged that the appellant/complainant had taken some blank cheques signed by the accused/respondent and on same cheque no amount was endorsed. It was also averred in the reply that, it is true that the accused/respondent has purchased the tractor and tools and the same were financed by the Co-operative bank Pratappur and the entire amount has been paid by the Co- operative Bank to the appellant/complainant. The accused/respondent did not give any reply because according to him, no amount is due against the accused/respondent. So, the appellant/complainant filed the complaint case under Section 138 of the Negotiable Instruments Act, 1881 against the respondent before the Chief Judicial Magistrate, Ambikapur District Surguja (C.G.). 3. In support of the complaint, the appellant/complainant examined himself as PW-01 and in his defence the accused/respondent has examined himself as DW-01. 4. The learned trial Court after appreciating the oral and documentary evidence by judgment dated 08.09.2010, acquitted 4 the respondent of the offence under Section 138 of the Negotiable Instruments Act, 1881. Hence, this acquittal appeal filed by the appellant/complainant. 5. Learned counsel for the appellant submits that the impugned judgment is illegal, erroneous and contrary to law. The learned trial Court has failed to appreciate the oral and documentary evidence in the record in its correct perspective which has resulted the erroneous finding. The learned trial Court grossly erred in holding that the complainant has failed to prove its case beyond all reasonable doubts. The learned trial Court did not appreciate the provisions of Sections 118, 138 and 139 of the Negotiable Instruments Act, 1881. The learned trial Court has failed to appreciate that the respondent/accused has not adduced any cogent and clinching evidence, so, how the complainant has obtained the cheque and how he obtained the signature on the cheque. It is clear that the cheque and signature was admitted by the accused. So, burden is upon the respondent/accused, but the learned trial Court did not appreciate the presumption under Section 118 of N.I. Act and wrongly acquitted the respondent. So,
Decision
the impugned judgment is liable to be set aside. 6. Reliance has been placed on the decision of Hon’ble Apex Court in the matter of K. Ramesh Vs. K. Kothandaraman reported in (2024) SCC OnLine SC 531. 5 7. Learned counsel for the respondent supporting the impugned judgment submits that the learned trial Court has minutely appreciated the oral and documentary evidence and in appeal against acquittal, the scope is very limited. As such, this judgment is well merited and this appeal being devoid of any merit is liable to be dismissed. 8. Reliance has been placed on the decisions of Hon’ble Apex Court in the matter of Sri Dattatreya Vs. Sharanappa reported in (2024) 8 S.C.R. 121, State of Rajasthan Vs. Ram Niwas reported in (2010) 15 Supreme Court Cases 463. 9. I have heard both the counsel for the parties and perused the material available on record. 10. From bare perusal of the record of learned trial Court it is evident that the appellant/complainant has filed complaint under Section 138 r/w 142 of N.I. Act, 1881 and under Section 420 of IPC. The learned trial Court has framed charges under Section 138 of the N.I. Act, 1881. The complainant examined the Manager of his company as (AW-01) and exhibited Ex. P/01 to Ex. P/05 documents and the respondent has also examined himself in defence and the respondent thereby admitted in the accused’s statement that he gave signed cheque to the appellant/complainant, but he stated that he financed tractor from Pratappur Co-operative Bank and gave Rs. 40,000/- to the 6 appellant/complainant and he paid in installments to the Bank. In his statement respondent R. Prasad admitted that he gave signed cheque to the complainant and the cheque was dishonoured by the Bank due to insufficient funds and he also admitted that he received notice from the complainant and he did not pay the cheque amount to the complainant. Defence of the respondent is that the complainant kept his chequebook and misused his blank cheque and he regularly paid amount to the Bank, but the respondent did not file any other documents which shows that he regularly paid loan amount to the Bank and he financed tractor from the Bank. The complainant clearly stated that tractor and its parts were purchased by the respondent through his firm/agency and gave him blank cheque Ex. P/01 which was dishonoured by the Bank. 11.Hon’ble Apex Court held in the matter of K. Ramesh (supra) held in paragraphs 5 & 6 which reads as under:- “5. In this regard our attention was drawn to paragraphs 32,33,34 and 36 of the judgment in Bir Singh, wherein it has been observed that even if a blank cheque leaf if voluntarily signed and handed over by the accused towards some payment would attract the presumption under Section 139 of the Act and in the absence of any cogent evidence to show that the cheque was not issued in discharge of the debt, the presumption would hold good. The said paragraphs are extracted below: 7 “33. A meaningful reading of the provisions of the Negotiable Instruments Act including. in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 35. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent- accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 36. Even a blank cheque leaf, voluntarily signed and handled 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.” 6. It is not in dispute that in the instant case, the accused has signed the cheque. The only dispute is with regard to the age of the ink used in making the signature on the cheque and the age of the signature and contents of the cheque.” 12. In the light of above judgment, and in the present case also the accused/respondent admitted that the cheque is on his account 8 and admitted his signature, stating that the accused kept his cheque book and misused his cheque and he paid all the amount to the Bank, but did not file any document to support his defence. So, presumption under Section 139 of N.I. Act, 1881 in the absence of any cogent evidence is attracted against the respondent, but the learned trial Court did not appreciate the provisions of Section 138 of N.I. Act, 1881 and finds that the complainant has failed to prove its case against the respondent. 13. Accordingly, impugned judgment is allowed and the judgment and finding recorded by the learned trial Court is perverse, not sustainable and the same are hereby set aside. 14. As such, the respondent is convicted under Section 138 of N.I. Act and sentenced to pay fine amount of Rs. 1,50,000/- with 6% interest from the date of judgment to date of realization. Sd/- (Rajani Dubey) Judge Uttej