Nafr High Court
Case Details
1 CRR No.481 of 2019 2025:CGHC:31013 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 481 of 2019 AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.07.08 19:04:06 +0530 Subhash Chouhan S/o Lalchand Chouhan, R/o Block No. 46/40, Mother Teresa, Nagar, Camp - 2, Bhilai, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh versus ... Applicant Smt. Nirmala Khandelwal W/o Mohan Khandelwal Aged About 50 Years R/o Khandelwal Kirana Stores, Supela Market, Bhilai, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh ... Respondent For Applicant For Respondent
Legal Reasoning
: Mr. Sanjay Kumar Agrawal, Advocae. : Mr. Anuj Kumar Pandey, Advocate. Hon'ble Shri Bibhu Datta Guru, Judge
Decision
Order on Board 07.07.2025 1. (a) The present revision is filed against the judgment dated 11.02.2019 passed in Criminal Appeal No.53/2017 by the learned 7th Additional Sessions Judge, Durg (C.G.), whereby the learned Appellate Court partly allowed the appeal filed by the applicant and reduced the sentence till rising of the Court, however, the fine amount as also the default sentence has been maintained. 2 (b) The aforesaid appeal has been preferred by the applicant before the appellate Court against the judgment of conviction and order of sentence dated 07.03.2017 passed by the learned J.M.F.C. Durg in complaint Case No.983/2013, whereby the applicant has been convicted under Section 138 of the Negotiable Instrument Act and directed him to pay a fine of Rs.3,10,000/-under Section 357(3) of the Cr.P.C., in default, the applicant shall undergo S.I. for two months. 2. Facts of the case, in brief, is that the complainant/respondent filed a complaint under Section 138 of the Negotiable Instrument Act, alleging therein that on 15.09.2008, the applicant had executed an agreement in favour of complainant/ non-applicant for sale of land bearing khasra no. 42/2017 area 135 sq.mtr. situated at Mother Teresa Nagar, Camp-2, Bhilai, District-Durg (C.G.) and pursuant to said agreement, the complainant had paid advance amount of Rs. 1,10,000/- and thereafter due to need of money, on the request of applicant, the non-applicant had paid Rs. 84,000/-, which is in addition to advance amount of Rs. 1,10,000/-, but despite several efforts made by the non-applicant, the applicant did not execute sale deed and in order to return the advance amount with interest, he had issued a cheque in favour of complainant/non-applicant to the tune of Rs. 2,50,000/- of State Bank of India on 14.09.2009, which was presented by the complainant, but the same was dishonored on account of insufÏcient fund in the bank account of accused, therefore again on 16.11.2009, the complainant presented the said cheque for 3 withdrawal of amount, but the same was again dishonored on account of insufÏcient fund. Thereafter, a legal demand notice was sent, which was received by the accused, but inspite of receiving notice, the accused/applicant failed to pay the cheque amount, therefore he filed complaint under Section 138 of Negotiable Instruments Act. 3. The learned trial Court on appreciation of material available on record and on due consideration of evidence adduced by the witnesses vide judgment and order dated 07.03.2017, convicted the applicant under Section 138 of the Act and sentenced him as mentioned above in para 1(b) of this judgment. Being aggrieved, the applicant filed an appeal against his conviction and sentence before the learned Appellate Court, however, the appeal of the applicant has been partly allowed as mentioned in para 1(a). Hence, this revision. 4. Learned counsel for the applicant submits that the impugned judgment passed by the learned trial Court and the appellate Court are illegal and against the law, therefore, the same is bad in the eyes of law. Learned counsel further submits that the learned trial Court as well as the learned Appellate Court below have not properly appreciated the facts and evidences available on record while passing the impugned judgments. Both the Courts have not appreciated the evidence of witnesses in true perspective. He further submits that the learned Courts have failed to appreciate that from the report of handwriting expert, it is evident that the questioned document i.e. cheque was not filled by the applicant 4 and the respondent/complainant has presented the cheque in question before the bank twice. Thus, the impugned judgments are liable 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 will be 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. The Hon’ble Supreme Court in the matter of M/s Kalamani Tex and Ors VS. P. Balasubramanian reported in 2021(2)SCALE 431 held in para 18 as under “18. 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 5 Kumar, (2019) 4 SCC 197, 36 where this court held that: “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 (supra), the Hon’ble Supreme Court held in paras 19, 20 & 21 as under : “19. 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. 20. 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 “insufÏcient funds”. 6 21. 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 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 Nirmala Khandelwal/respondent, the complainant executed a deed with the applicant on 15/09/2008 for Rs. 3,95,000/- (three lakh ninety five thousand rupees) for purchasing the residential plot No. 42/17 measuring 135 sqm situated in Mother Teresa Nagar Camp 2, Bhilai, owned by the applicant. The complainant gave Rs. 1,10,000/- (one lakh ten thousand rupees) to the applicant as earnest money. Thereafter, the applicant told the respondent/complainant that he needed more money due to delay in getting the documents from the Nagar Nigam, then the complainant gave Rs. 84,000/- more to the applicant. For the said amount along with interest, the applicant signed the disputed cheque Ex. P-1 and gave it to the 7 complainant. Since the cheque is of the account of the applicant, the legal presumption under Section 118 and Section 139 arises in favour of the complainant. In this case, no such evidence has been presented by the applicant which can rebut the legal presumption made in favour of the complainant under Section 118, 119 and 139 of the Negotiable Instruments Act. 11. In this case, in the statement of applicant under Section 313 of the Cr.P.C., the applicant/Subhash Chauhan has admitted that his signature is on the disputed cheque Ex.P-1 and also admitted that the contract for sale of land is Rs. 3,95,000/-. The applicant has admitted the fact that the applicant has signed the disputed cheque. 12. In view of foregoing reasons, the impugned judgment passed by the learned trial Court as well as the learned Appellate Court are just and proper, warranting no interference of this Court. 13. Accordingly, the present criminal revision is dismissed. Gowri/ Amardeep SD/- (Bibhu Datta Guru) Judge