01.05.2025 Jeevrakhan Lal Sahu S/o Sudarsan Sahu Aged About 42 Years R/o Village v. 1. Bodhan Lal Sahu S/o
Case Details
1 2025:CGHC:19788 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 133 of 2023 Judgment Reserved on : 05.02.2025 Judgment Delivered on : 01.05.2025 Jeevrakhan Lal Sahu S/o Sudarsan Sahu Aged About 42 Years R/o Village Akalwara, P.O. Khudni, Tahsil Gurur, District Balod (C.G.) ... Appellant versus 1. Bodhan Lal Sahu S/o Shri Motilal Sahu Aged About 38 Years R/o Village Akalwara, P.O. Khudni, Tahsil Gurur, District Balod (C.G.) (Accused) 2. State Of Chhattisgarh Through District Magistrate District Dhamtari (C.G.) ... Respondent For Appellant(s) : Mr. Rajeev Shrivastava, Sr. Advocate with Ms. Isha Jajodiya & Mr. C.R. Sahu, Advocate For Respondent No. 1
Legal Reasoning
complainant miserably failed to prove. It is well settled position of law that the initial burden lies upon the complainant then only the rebuttal is required to be done by the accused. The Hon’ble 6 Supreme Court in case of Rajesh Jain (Supra) has considered the ingredients of the offence enumerated in Section 138 of N.I. Act, 1881 and on its fulfillment, the offence under Section 138 of N.I. Act, 1881 will be attracted if the accused is unable to rebut the statutory presumption contemplated by Section 139 of the N.I. Act, 1881. The Hon’ble Supreme Court in paragraphs 26 to 28 has held as under: “26. In Gimpex Private Limited vs. Manoj Goel, this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure: (1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account; (i) The cheque being drawn for the discharge in whole or in part of any debt or other liability; (iii) Presentation of the cheque to the bank arranged to be paid from that account, (iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount (v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and (vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice. 27. In K. Bhaskaran v. Sankaran Vaidhyan Balan8 this Court had summarised the constituent elements of the offence in fairly similar terms by holding: “14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice.” 28. The five (5) acts as set out in K Bhaskaran’s case (supra) 7 are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex’s case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability.” 11. Again the Hon’ble Supreme Court in case of N. Vijay Kumar vs. Vishwanath Rao N. reported in 2025 SCC Online 873 has held in paragraphs 11, 13 and 14 which reads as under: “11. Considering the sum total of the above, we find that the probable defence on the part of the accused has been established. Once such a defence is established, the burden again shifts upon the complainant to now establish his case beyond a reasonable doubt, for after all, the effect of Section 138 of the N.I. Act is a criminal conviction. Reference may be made to Rajesh Jain v. Ajay Singh12 and, more particularly Para 44 thereof, which reads as under: “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 {Basalingappa v. Mudi basappa, (2019) 5 SCC 418: (2019) 2 SCC (Cri) 571: AIR 2019 SC 1983]; see also, Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184: AIR 2010 SC 1898}]” 8 13. Keeping in view the above factors, it cannot be said that the complainant was able to discharge the burden once it had shifted back upon him, with the accused having discharged the burden of Sections 118 and 139 of the N.I. Act. 14. Consequent to the above discussion, we are of the view that the Trial Court was correct in recording a finding of acquittal in favour of the accused and reversal thereof by the High Court in terms of the impugned judgment, with particulars as in Para 1, was unjustified. As a result, the appeal is allowed.” 12. The learned trial Court while dismissing the complaint has recorded its finding in paragraphs 16 and 19 that there was contradiction and omission regarding loan amount and the complainant has also not stated what was the relationship between complainant and the accused which has impressed upon the complainant to pay loan amount of Rs. 4,00,000/-. The trial Court has also recorded its finding that when the complainant was asked from where he obtained Rs. 4,00,000/-, he has stated that he used to keep Rs. 5-10 Lakhs in the house, but no evidence has been produced by the complainant to substantiate this fact or the cheque was given towards legally recoverable debt or liability. Even no documentary proof was produced by the complainant to discharge his burden to prove the existence of liability upon the accused. 13. From the evidence on record, it is quite vivid that the complainant has failed to show that any sum was advanced towards debt or liability and in discharge of which the alleged cheque has been issued as it does not reflect in the complainant’s account alleged to maintain by him. It is pertinent to mention here that no books of account were produced by the complainant despite opportunities 9 available to him during trial. Thus, the complainant has miserably failed to prove the ingredients of Section 138 of N.I. Act, 1881 and accordingly, the learned trial Court has acquitted the accused. This finding is in accordance with the law laid down by the Hon’ble Supreme Court in case of M/S Rajco Steel Enterprises v. Kavita Saraff and Another reported in 2024 (9) SCC 390 wherein the Hon’ble Supreme Court has held in paragraph 10, 11 and 13 as under: “10. Mr. S. Nagamuthu, learned Senior Counsel, appearing on behalf of the accused/respondent no.1, defended the judgment of the First Appellate Court, as also of the High Court. His submission as that the complainant/petitioner did not fulfil the requirement of being “a holder in due course”, as no evidence was produced by the petitioner to show that the said cheques were issued in discharge of a legally enforceable debt and hence, he could not be a person who had, for due consideration, become the possessor of the cheques. He referred to the depositions made before the Trial Court, in support of his submission that the presumption under Section 139 read with Section 118 of the 1881 Act was not applicable in the case of the complainant/petitioner because such presumption stood effectively rebutted. He relied on the judgment of this Court in the cases:- (i) Basalingappa -vs- Mudibasappa [(2019) 5 SCC 418], (ii) K. Subramani -vs- K. Damodara Naidu [(2015) 1 SCC 99],
Arguments
: Mr. Somnath Verma, Advocate For State : Mr. Kishan Lal Sahu, Dy. Government Advocate Hon'ble Shri Justice Narendra Kumar Vyas (CAV Judgment) 1. The appellant has filed the present acquittal appeal under Section 378(4) of the Code of Criminal Procedure, 1973 against the order dated 05.03.2020 (Annexure A/1) passed by the learned Judicial Magistrate First Class Dhamtari, District - Dhamtari (C.G.) in MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.05.01 15:22:57 +0530 2 Criminal Case No. 1013/2017 by which the learned Magistrate has dismissed the complaint filed under Section 138 of Negotiable Instruments Act, 1881 (in short “N.I. Act, 1881”) and acquitted the accused. 2. Brief facts of the case are that: (a) The complainant and accused/respondent No. 1 are known to each other and because of good relation the accused has taken a loan of Rs. 4,00,000/- from the appellant for purchasing the land. It is also the case of the complainant that to discharge his debt and liability the accused has given a cheque bearing No. 579071 dated 02.03.2017 drawn at Bank of Baroda, Branch Gurur for Rs. 4,00,000/-. (b) The said cheque was deposited in the account maintained by the complainant at Axix Bank, Branch Dhamtari on 03.03.2017. The said cheque was returned on 03.03.2017 with endorsement “dishonored due to insufficient fund” vide memo dated 03.03.2017, thereafter, the accused told the appellant to submit that cheque again for encashment during the validity period of the cheque and accordingly, the appellant has submitted the said cheque for encashment on 28.04.2017. The said cheque was again returned on 29.04.2017 with endorsement “dishonored due to insufficient fund” vide memo dated 04.05.2017. Thereafter, the appellant had sent a legal notice through his counsel to the accused on 23.05.2017, but neither the amount was paid to the appellant nor replied to the said notice which has necessitated the complainant to file a 3 complaint case under Section 138 of N.I. Act, 1881 against the accused before the learned Judicial Magistrate First Class Dhamtari, District - Dhamtari (C.G.). 3. The complainant to prove his case has examined himself by way of an affidavit as provided under Section 145 of N.I. Act, 1881 and has exhibited documents i.e. Cheque bearing no. 579071 dated 02.03.2017 (Exhibit P/1), Cheque Return Memo dated 29.04.2017 (Exhibit P/2), Cheque Return Memo (Exhibit P/3), Postal Receipt (Exhibit P/4), Registered Notice dated 23.05.2017 (Exhibit P/5) Acknowledgment Receipt (Exhibit P/6), Acknowledgment Receipt (Exhibit P/7) and Bank Deposit Slip (Exhibit P/8) in support of his complaint. The complainant examined himself by way of an affidavit wherein he has reiterated the stand taken by him in the complaint. The witness was cross-examined wherein he has admitted that he has not mentioned in the complaint as well as in the affidavit how he got Rs. 4,00,000/-. He has also stated that he was working as contractor in the year 2016. 4. The accused has not examined any witnesses, but he has examined under Section 313 of Cr.P.C. wherein he has stated that he is innocent and falsely implicated in the case. He has also stated that when he was working at Jivarakhan's house, at that time the complainant promised him to provide loan and accordingly, he has opened the bank account and has kept it with him. Later on when a dispute arose between them, therefore, he has falsely implicated him in the present case. 5. On the basis of evidence and material on record, the learned trial 4 Court has recorded its finding that the complainant has not proved that he has given money to the accused and cheque was given towards debt or liability. Accordingly, by impugned order the trial Court has dismissed the complaint and acquitted the accused. Being aggrieved with this order the complainant has filed this acquittal appeal. 6. Learned counsel for the appellant would submit that the learned trial court has failed to appreciate the evidence available on record and wrongly acquitted the accused. He would further submit that learned trial court has committed material irregularities by acquitting the accused. He would further submit that learned trial court has failed to see that the accused has taken loan of Rs. 4,00,000/- from the appellant and for the payment of loan amount he has given this cheque to the appellant. Thus, it is quite vivid that the cheque was given towards debt or liability, as such, the trial Court should have convicted the accused and would pray for allowing the appeal. The learned counsel for the appellant to substantiate his submission has referred to the judgment of Hon’ble Supreme Court in case of Rajesh Jain vs. Ajay Singh reported in 2023 (10) SCC 148. 7. Per contra, learned counsel for the respondent would submit that the complainant has not placed any record to demonstrate that the said cheque was given by the accused towards any debt or liability. He would further submit that cheque was presented on 02.03.2017 and same was dishonored on 03.03.2017, but no notice was served upon the accused and the complaint was filed 5 on 20.06.2017, as such, also the complaint is barred by limitation and would pray for dismissal of the appeal. 8. I have heard learned counsel for the parties and perused the record. 9. Considering the rival submissions of the parties, the point emerged for determination by this Court is: Whether the impugned order of dismissal of the complaint dated 05.03.2020 is legal, justified and warrants interference by this Court? 10. To appreciate this point framed by this Court, it is expedient for this Court to go through the evidence brought on record. The complainant in the cross-examination has categorically admitted the fact that there was no documentation with regard to transaction with the accused and he has also admitted that in the account maintained by him for the year 2016, 2017 and 2018 there is no mentioning about the transactions with the accused. The complainant has also admitted in the cross-examination that he is aware that no cash transaction of Rs. 50,000/- can be done without documentation. The record of the case would demonstrate that the complainant has not produced any cogent evidence to prove that he has given Rs. 4,00,000/- in cash to the accused. Which is essential for the complainant to prove the presumption as required under Section 139 of the N.I. Act, 1881 which the