Durg, Chhattisgarh v. Sunil Kumar Jain
Case Details
1 2025:CGHC:45239 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 465 of 2019 Arvind Singh Khandelwal S/o Balkishan Khandelwal, Aged About 38 Years, R/o Surana Building, Ganjpara, Durg, Police Station- City Kotwali, District- Durg, Chhattisgarh ... Appellant(s) versus Sunil Kumar Jain (Baradia) S/o B.M. Baradia, Aged About 44 Years, R/o Near Khandelwal Colony, Vardhman Nagar, Durg, Through Padma Baradia, “Chartered Accountant”, Jawahar Chowk, Durg, Police Station- City Kotwali, Durg, Tahsil And District- Durg, Chhattisgarh ... Respondent(s) For Appellant
Legal Reasoning
: Mr. Ali Afzaal Mirza, Advocate For Respondent(s) : Mr. Rohan Kumbhare, Advocate on behalf of Mr. TK Jha, Advocate SB : Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 04/09/2025 SHYNA AJAY Digitally signed by SHYNA AJAY DN: cn=SHYNA AJAY, o=PERSONAL, st=Chhattisgarh, c=IN 1. This Acquittal Appeal has been preferred against the judgment dated 23.2.2016 passed in Criminal Appeal No.144/2015 by the Additional 2 Sessions Judge, Durg (CG), whereby, while allowing the appeal preferred by the respondent/accused, the judgment dated 9.10.2015 passed by the Judicial Magistrate First Class, Durg, in Criminal Complaint Case No.277/13, was set-aside. By the said judgment dated 9.10.2015, the respondent/accused had been convicted under Section 138 of the Negotiable Instruments Act, 1881 (in short “the Act, 1881”) and was sentenced to undergo SI for 3 months and to pay compensation of Rs.2,20,000/-, in default of payment of compensation to undergo additional SI for 1 month. Furthermore, against the aforesaid judgment dated 9.10.2015, Criminal Appeal No.37/2016 preferred by the complainant seeking enhancement of sentence and compensation, was dismissed by the Appellate Court. By the impugned judgment, the respondent/accused has been acquitted of the said charge. 2. Necessary facts of the case, as per the averments in the complaint, are that the complainant had been acquainted with the respondent/accused for a long time. The respondent/accused for his business needs made a demand for cash loan and on different dates, the complainant advanced loan to him, aggregating to a sum of Rs.2,00,000/-. For repayment of the said loan, the respondent issued two cheques dated 28.1.2013 and 24.1.2013 for Rs.1,00,000/- each respectively (Ex.C/1 & Ex.-C2 respectively). When both the cheques were presented for encashment, they were dishonoured due to insufficiency of funds as per the Bank Memos - Ex.C/3 & C/4 respectively. Thereafter, a legal notice (Ex.C/6) was 3 served upon the respondent. Despite service of the said notice, when the payment was not made, the complaint case has been filed. 3. During trial, the respondent/accused abjured his guilt and claimed to be tried. In order to prove his case, the complainant has examined himself and exhibited 10 documents vide Ex.C/1 to C/10. 4. In the statement recorded under Section 313 of the Cr.P.C., the respondent/accused stated that he has been falsely implicated and he had given the said cheques as security for the business transaction. The respondent/accused examined himself and father of the complainant namely Balkrishna Khandelwal (DW-2) and Prakash Uikey (DW-3), the then employee of KJ Enterprises, to demonstrate the fact that he had business relations with the said concern, whose proprietor was complainant -Arvind Singh Khandelwal. Further, certain amounts in cash were deposited with the employee of the said concern vide Ex.D/3 and with the complainant’s father vide Ex.- D/2. However, the Ledger Account-Ex.D/1 did not reflect the aforesaid deposits and there was a mismatch in the entries. The said ledger account (Ex.D/1) has been supplied to the respondent/accused by the complainant. In this regard, Ku. Sugandha Dhenge, Handwriting Expert, was also examined. 5. The trial Court, after evaluation of the evidence, convicted the respondent/accused, against which, he preferred an appeal (Criminal Appeal No.144/2015), which was allowed. However, the other appeal (Criminal Appeal No.37/2016) filed by the appellant/complainant for enhancement of sentence and compensation was dismissed. 6. Learned counsel for the appellant/complainant would submit that the 4 respondent/accused has not denied his signature on the disputed cheques (Ex.C/1 & C/2). Therefore, legal presumptions under Sections 118 and 139 of the Act, 1881, would arise and he has not discharge the burden of rebutting the same. In support of the above contention, learned counsel for the appellant would place reliance on judgments rendered in the matters of Bir Singh Vs. Mukesh Kumar, reported in (2019) 4 SCC 197 and P. Rasiya Vs. Abdul Nazer and another, reported in 2022 SCC OnLine SC 1131. He would lastly submit that the appeal may be allowed and conviction of the respondent/accused be restored. 7. On the other hand, learned counsel for the respondent/accused would support the impugned judgment and submits that the same is well merited and does not call for any interference. 8. Heard learned counsel for the parties and also perused the record with utmost circumspection. 9. 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 Section 118 and Section 139 of the NI Act has been clarified. As per Section 118 of the NI 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 Act “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. Both the presumptions are rebuttable in nature. The 5 relevant paras of the aforesaid judgment i.e. 33 to 44 is 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 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. 6 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 the Jury 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 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 7