Dr. AK Guin, aged about 62 years, S/o Late PC Guin, R/o Akaltara, PS v. Sanjay Rohra, D/o Laxman Das Rohra, aged 28 years, R/o Shastri Chowk, Akaltara
Case Details
1 2025:CGHC:13542 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Judgment reserved on : 10-01-2025 - 2025 Judgment delivered on : 21 -03 Acquittal Appeal No.19 of 2017 Dr. AK Guin, aged about 62 years, S/o Late PC Guin, R/o Akaltara, PS Akaltara, Distt. Janjgir-Champa (CG) ---- Appellant/complainant Versus Sanjay Rohra, D/o Laxman Das Rohra, aged 28 years, R/o Shastri Chowk, Akaltara, PS Akaltara, Distt. Janjgir-Champa (CG) ---- Respondent /Non-applicant For Appellant Respondent : : Shri Swayam Tenguria, Advocate on behalf of Shri Mukesh Sharma, Advocate.
Legal Reasoning
Shri Siddharth Pandey, Advocate. Hon’ble Smt. Justice Rajani Dubey, J CAV Judgment Challenge in this appeal is to the legality and validity of the judgment dated 20.5.2016 passed by Judicial Magistrate First Class, Akaltara, Distt. Janjgir-Champa in Criminal Case No.185/2013 whereby the respondent/accused has been acquitted of the charge under Sections 138 of Negotiable Instruments Act. 02. Case of the prosecution, in brief, is that the respondent/accused borrowed a sum of Rs. 1.10 lac from the appellant/complainant on 17.7.2010 for meeting the household expenses and his fruit business and on the same date an agreement to this effect was executed 2 between them. When the appellant/complainant demanded his money back, on 17.12.2012 the respondent/accused gave him Cheques No.960608 and 956601 of Rs.1 lac and Rs.10,000/- respectively. However, when the appellant/complainant presented the said cheques for encashment at Central Bank of India, Branch-Akaltara, it got dishonoured on 17.12.2012 due to insufficient amount in the account of the drawer and returned to the appellant with a memo to this effect. Hence the appellant/complainant sent a legal notice on 24.12.2012 through his advocate to the respondent/accused but despite receipt of the said notice, the respondent/accused did not make payment of these cheques to him which led to filing a complaint case under Section 138 of the Negotiable Instruments Act, 1881 (in short “the NI Act”) against the respondent/accused. 03. Learned trial Court framed charge under Section 138 of the NI Act against the respondent/accused, to which he abjured his guilt and prayed for trial. Learned trial Court framed issues and after appreciation of oral and documentary evidence on record, by the impugned judgment acquitted the respondent/accused of the said charge extending him benefit of doubt. Hence this appeal. 04. Learned counsel for the appellant/complainant would submit that the impugned judgment of acquittal is per se illegal and contrary to the material available on record. Learned trial Court has not properly appreciated the oral and documentary evidence on record. He submitted that though the cheques in question were issued as security by the respondent/accused, however, on his failure to repay the 3 borrowed sum within the stipulated time period, when the said cheques were presented for encashment, the same stood dishonoured due to insufficient amount in the account of drawer. In these circumstances, the learned trial Court was not justified in recording a finding of acquittal in favour of the accused. Therefore, the impugned judgment of acquittal is liable to be set aside and the respondent/accused be held guilty under Section 138 of the NI Act and sentenced accordingly. Reliance has been placed on the decision of the Hon'ble Supreme Court in the matter of Sripati Singh (since deceased) through his son Gaurav Singh Vs. The State of Jharkhand and another, reported in 2021 0 Supreme (SC) 630. 05. On the other hand, learned counsel for the respondent/accused supporting the impugned judgment would contend that complainant Dr. AK Guin has admitted in cross-examination that the name and date in the cheques were written by him. The respondent/accused had borrowed Rs.1.10 lacs on 17.7.2010 and executed an agreement (Ex.P/5) acknowledging receipt of the said amount. As per this agreement, the respondent/accused agreed to repay the amount in eight installments of Rs.15,000/- per month from 16.8.2010. The respondent also handed over a cheque of Rs.1 lac as security for the loan, enabling the complainant to withdraw the amount in case of default. Learned trial Court rightly recorded a finding that the cheques were issued as security and not for the discharge of any existing liability. He would further submit that in reply the respondent/accused had specifically stated that the alleged cheques were lost and the 4 complainant could not establish the fact that the alleged cheques were issued in discharge of any legally enforceable debt/liability. Thus, in the given facts and circumstances of the case and the evidence on
Decision
record, the impugned judgment is strictly in accordance with law. The present appeal being devoid of any substance is liable to be dismissed. Reliance has been placed on the decision of the Hon'ble Supreme Court in the matter of Sudhir Kr. Bhalla Vs. Jagdish Chand and others reported in (2008) 7 SCC 137. 06. Heard learned counsel for the parties and perused the material available on record. 07. It is clear from the record of learned trial Court that the appellant/complainant filed a complaint under Section 138 of the NI Act against the respondent/accused for dishonour of cheques dated 17.12.2012 bearing No.960608 & 956601 (Ex.P/1 & P/2) wroth Rs.1 lac and Rs.10,000/- respectively. The appellant/complainant examined himself as PW-1 and one witness Raju Arora as PW-2. The complainant filed the cheques as Ex.P/1 & P/2, notice as Ex.P/3, postal receipt as Ex.P/4, the agreement as Ex.P/5 and Return Memo of the bank as Ex.P/6. As per this Return Memo, the cheque bearing No. 960608 amounting to Rs.1 lac got dishonoured due to insufficiency of fund in the account of the drawer. In cross-examination it was suggested by the defence that the complainant got the signature of Vinod Rohra along with the accused on the agreement Ex.P/5 on account of his presence there and this suggestion was admitted by the complainant. The complainant also admitted the suggestion that the 5 name and date in the cheques were written by him whereas the amount was written by the accused. He denied the suggestion that the accused had given him blank cheque. 08. The accused in his statement under 313 of CrPC simply made bald denial of all the allegations and did not adduce evidence in support of his defence. He also did not explain the fact as to how the blank cheques came in possession of the complainant. 09. The Hon’ble Apex Court in the matter of Rajesh Jain Vs. Ajay Singh; (2023) 10 SCC 148 has held in paras 33, 34, 35, 37, 55 & 56 of its judgment as under:- “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. 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. The rules discussed hereinbelow is common 6 to both the presumptions under Section 139 and Section 118 and is hence, not repeated-Reference to one can be taken as reference to another 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’. 35. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two 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. Co. Vs. Amin Chand Pyarelal] [(1999) 3 SCC 35]. 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. 55.At the stage when the courts concluded that the signature had been admitted, the Court ought to have inquired into either of the two questions (depending on the method in which accused has chosen to rebut the presumption): Has the accused led any defense evidence 7 to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the nonexistence of debt/liability by a preponderance of probabilities by referring to the ‘particular circumstances of the case”? 56. The perversity in the approach of the Trial Court is noticeable from the way it proceeded to frame a question at trial. According to the trial Court, the question to be decided was 'whether a legally valid and enforceable debt existed qua the complainant and the cheque in question (Ex. CWI/A) was issued in discharge of said liability/debt'. When the initial framing of the question itself being erroneous, one cannot expect the outcome to be right. The onus instead of being fixed on the accused has been fixed on the complainant. Lack of proper understanding of the nature of the presumption in Section 139 and its effect has resulted in an erroneous Order being passed.” 10. Learned trial Court did not properly appreciate the evidence led by the complainant and the failure of the accused to rebut the presumption under Section 139 of the NI Act, and committed an illegality in holding that the complainant has failed to prove his case beyond reasonable doubt. The findings so recorded by the learned trial Court are not in consonance with the provisions of the NI Act. In the given facts and circumstances of the case, the judgment relied upon by the respondent/accused is of no help to him. Therefore, the impugned judgment of acquittal is liable to be set aside. 11. In the result, the appeal is allowed. The impugned judgment dated 20.5.2016 of learned trial Court is hereby set aside. The 8 respondent/accused is held guilty under Section 138 of the NI Act and sentenced to pay a fine of Rs.2 lacs within a period of six months from today or else he shall suffer RI for two years. The fine so deposited by the respondent/accused shall be paid to the appellant/complainant as compensation under Section 395(1)(b) of Bharatiya Nagarik Suraksha Sanhita, 2023. Sd/ (Rajani Dubey) Judge MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2025.03.22 13:27:57 +0530 Khan