Alok Shrivastav S/o Shri Ashok Kumar Shrivastav (Now Dead) Aged About 48 Years Through v. Jyoti Mohanti D/o Sitaram Mohanti Aged About 45 Years R/o
Case Details
1 2025:CGHC:18400 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.M.P No.1221 of 2025 Alok Shrivastav S/o Shri Ashok Kumar Shrivastav (Now Dead) Aged About 48 Years Through Samta Shrivastav Wd/o Late Alok Shrivastav, R/o Mahadevghatpara Shiv Mandir Ward, Jagdalpur, Distt. Bastar (C.G.) ... Petitioner/Complainant versus Jyoti Mohanti D/o Sitaram Mohanti Aged About 45 Years R/o Dr. Ramsnehi Gali, Durga Chowk, Sadar Ward, Jagdalpur, Distt. Bastar (C.G.) ... Respondent/accused For Petitioner
Legal Reasoning
: Shri Ashok Kumar Shukla, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 23.04.2025 Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.04.24 11:09:49 +0530 1. This Petition has been filed for grant of special leave to Appeal under Section 419(4) of BNSS, 2023 against the judgment of acquittal dated 06.02.2025 passed by the JMFC, Jagdalpur, District Bastar in Complaint Case No.136/2017 whereby, the Respondent/accused has 2 been acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’). 2. As per the complaint, the deceased husband of the Complainant has filed a complaint case alleging inter alia that he was a vehicle transporter as also the agent of the Insurance Company and the Respondent/accused was working in Mahaveer Automobile, Jagdalpur and was also dealing with RTO and insurance cases and both the parties were having business affairs with each other. The Respondent/accused has borrowed cash of Rs.5 lacs for her child’s education from the deceased Complainant which was given to her by him on 08.05.2016 and for repayment of the same, a promissory note was executed. On 05.08.2016, the Respondent/accused has returned Rs.20,000/- in cash and for the remaining amount i.e. Rs.4,80,000/-, a cheque was issued. When the said cheque was presented for encashment before the Bank on 06.08.2016 (Ex.P-1), it was dishonoured (Ex.P.-2) for which, legal notice was sent to the Respondent/accused (Ex.P-3) but even thereafter, as the repayment was not done, a complaint case has been registered against her. During trial, the original Complainant-Alok Shrivastava has died, therefore, his wife has been impleaded as a party to pursue the matter. After evaluating the evidence on record, the learned trial Court has acquitted the Respondent/accused of the charge under Section 138 of the NI Act. Hence this Appeal has been filed. 3. Shri Shukla submits that the trial Court has acquitted the Respondent/accused only on the ground that the Appellant/Complainant 3 has failed to establish his financial capacity and the source of income though the said facts have duly been established by him, therefore, the finding recorded by the said Court is perverse and prays to grant leave to Appeal. 4. Heard learned Counsel for the Petitioner and perused the annexed documents with utmost circumspection. 5. In the matter of Rajesh Jain Vs. Ajay Singh, reported in (2023) 10 SCC 148, the law relating to the effect of legal presumption as per Sections 118 & 139 of the NI Act has been clarified. As per Section 118 of the said 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 said Act “unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge, in whole or in part of any debt or other liability. Both the presumptions are rebuttable in nature. The relevant paras of the aforesaid judgment i.e. 33 to 44 are 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 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 4 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”. in 35.The Court will necessarily presume that the cheque had been issued towards discharge of a two legally enforceable debt/liability 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]. 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 theJury 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 5 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)] 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 6 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 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]” 6. Similarly, in the matter of Dattatraya vs. Sharanappa reported in (2024) 8 SCC 573, while affirming the findings of the trial Court, the High Court has observed that while the signature of the Respondent on the cheque drawn by him as well as on the agreement between the 7 parties herein stands admitted, in case where the concern of financial capacity of the creditor is raised on behalf of an accused, the same is to be discharged by the complainant through leading of cogent evidence.. Relevant paras i.e. 23 and 28 read as under:- “23. In light of the aforesaid discussion, and as underscored by this Court recently in the decision of Rajesh Jain v. Ajay Singh (2023) 10 SCC 148, an accused may establish non-existence of a debt or liability either through conclusive evidence that the cheque concerned was not issued towards the presumed debt or liability, or through adduction of circumstantial evidence vide standard of preponderance of probabilities. 28. Furthermore, on the aspect of adducing evidence for rebuttal of the aforesaid statutory presumption, it is pertinent to cumulatively read the decisions of this Court in Rangappa v. Sri Mohan (2010) 11 SCC 441 and Rajesh Jain v. Ajay Singh (2023) 10 SCC 148 which would go on to clarify that the accused can undoubtedly place reliance on the materials adduced by the complainant, which would include not only the complainant’s version in the original complaint, but also the case in the legal or demand notice, complainant’s case at the trial, as also the plea of the accused in the reply notice, his Section 313 CrPC 1973 statement or at the trial as to the circumstances under which the promissory note or cheque was executed. The accused ought not to adduce any further or new evidence from his end in the said circumstances to rebut the statutory presumption concerned.” 7. Falling back to the facts of the case on hand, the Respondent/accused has taken a specific plea that whilst she was working in Mahaveer Automobile, Jagdalpur, she came into contact with the father of the deceased Complainant i.e. Ashok Kumar Shrivastava and has also examined herself as defence witness wherein, she has categorically deposed that Ashok Shrivastava has allured her for marriage and was in physical relationship with her since 2009. She has 8 further deposed that he also assured to appoint her as an agent in National Insurance Company and in the year 2013, she became an agent in the said Company for which, Ashok Shrivastava obtained various blank cheques and certain other documents from her in the name of renewal of insurance of the city buses by informing that the same shall be done by the Office situated at Raipur and the said cheques were misused. She has further deposed that deceased Complainant Alok Shrivastava was the son of Ashok Shrivastava and they have filed different cases residing under same roof. It is also an admitted fact that on the complaint of the Respondent/accused, a criminal offence has been registered against Ashok Shrivastava for the offence under Sections 376 and 420 IPC and ultimately, the charge sheet has been challenged by Ashok Shrivastava in Cr.M.P No.435/2018 and vide judgment dated 03.05.2024, the said charge sheet was quashed and the Respondent/accused has further challenged the said judgment by way of SLP(Cr.) No.33966/2024 and the same was dismissed vide order dated 24.01.2025. Complainant (CW-1) categorically admits in his cross-examination that he was not aware that in a cheque bounce case, his own brother namely Deepak Shrivastava was held guilty and the Respondent/accused at para-10 of her cross-examination, has categorically deposed and also filed copy of the judgment dated 11.09.2018 passed by the JMFC whereby, Deepak Shrivastava was held guilty, therefore, a defence was taken that the own brother was also residing in the same house and the family was not able to arrange such a huge amount. The deceased Complainant 9 admits that he has not filed any income tax return where any mention with regard to the cash transaction was made. In the matter of Krishna Janardhan Bhat vs. Dattatraya G. Hegde reported in (2008) 4 SCC 54, it was held that the courts below failed to notice that ordinarily in terms of Section 269-SS of the Income tax Act, any advance taken by way of any loan of more than Rs.20,000/- was to be made by way of an account payee cheque only and Section 271-D of the said Act is relevant here, which reads as under:- "Penalty for failure to comply with the provisions of Section 269- SS-(1) If a person takes or accepts any loan or deposit in contravention of the provisions of Section 269-SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted." 8. In view of the aforesaid case laws and the factual matrix of the case in hand, this Court is of the opinion that the Respondent/accused has successfully raised a reasonable doubt with regard to the transaction for which the cheque was presented. If a transaction appears to be skeptical, the presumption under Sections 118 and 139 of the NI Act can be rebutted and as such, the finding recorded by the trial Court appears to be just and proper invoking no interference therefore, no case for grant of leave is made out as the view taken by the said Court is a plausible one. 9. Resultantly, the instant Petition fails and is accordingly dismissed. Priya Sd/- (Deepak Kumar Tiwari) JUDGE