Sanjay Kumar Gupta S/o Shri Shyam Kishore Gupta Aged About 47 Years R/o Village v. 1 - Vijay Kumar Gupta S/o Late
Case Details
1 BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.01.10 18:58:41 +0530 2025:CGHC:1720 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2267 of 2018 Sanjay Kumar Gupta S/o Shri Shyam Kishore Gupta Aged About 47 Years R/o Village- Batauli, Thana-Batauli, District-Surguja, Chhattisgarh --- Petitioner versus 1 - Vijay Kumar Gupta S/o Late Shri Raghunandan Gupta Aged About 50 Years R/o Village- Batauli, Thana And Tahsil-Batauli, District- Surguja, Chhattisgarh 2 - State Of Chhattisgarh Through Collector, Surguja, District- Surguja, Chhattisgarh --- Respondents ACQA No. 83 of 2019 Sanjay Kumar Gupta S/o Shri Shyam Kishore Gupta Aged About 45 Years R/o Village Thana And Tahsil- Batauli, District- Surguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh ---Petitioner Versus Vijay Kumar Gupta S/o Late Shri Raghunandan Gupta Aged About 50 Years R/o Village Thana And Tahsil- Batauli, District- Surguja, Chhattisgarh --- Respondent For Petitioner : Sanjay Kumar Gupta in person For Respondent-
Legal Reasoning
: Mr.Govind Dewangan, Advocate Vijay Kumar Gupta For Respondent- : Mr.U.K.S.Chandel, Deputy Advocate General 2 State 09.01.2025 Hon'ble Shri Ramesh Sinha, Chief Justice
Decision
Order on Board 1. Since Mr.Govind Dewangan, Advocate is representing accused / respondent Vijay Kumar Gupta in Acquittal Appeal No.83/2019, Mr.Dewangan has also been heard in CRMP No.2267/2018 in which the said accussd is arrayed as respondent No.1. 2. Heard petitioner Sanjay Kumar Gupta in person. Also heard Mr.Govind Dewangan, learned counsel appearing for the respondent-Vijay Kumar Gupta and Mr.U.K.S.Chandel, learned Deputy Advocate General appearing for the respondent-State. 3. Petitioner-Sanjay Kumar Gupta has filed CRMP No.2267/2018 with following prayers:- “3.1 That, the petitioner above named and respectfully prays to this Hon’ble Court to call for entire record pertaining to Criminal Complaint Case no.387/2015 pending before the Jurisdictional Judicial Magistrate, Sitapur, District-Surguja (Chhattisgarh) for its kind perusal. 3.2 That, this Hon’ble Court may kindly be pleased to set aside impugned order dated 22.9.2018 (Annexure-P/1) and impugned order dated 5.9.2018 (Annexure-P/2). 3.3 That, the petitioner above named most respectfully prays to this Hon’ble Court to direct the learned trial Court 3 to take cognizance of dishonor of two cheques bearing no.”334642” of Rs.2,00,000/- dated 31.07.2015 and cheque bearing no.”334643” of Rs.1,20,000/- dated 31.07.2015 as stated in the complaint case and consequently charge framed on 12.10.2015 (Annexure-P/5) against the respondent No.1 may be altered to that effect.” 4. Petitioner-Sanjay Kumar Gupta has filed Acquittal Appeal No.83/2019 with following prayers:- “3.1 That, the appellant above named most respectfully prays to this Hon’ble Court to call for entire record pertaining to Nego case no.385/2015, decided by the Judicial Magistrate First Class, Sitapur, District – Surguja (Chhattisgarh) for its kind perusal. 3.2 That, the appellant above named most respectfully prays to this Hon’ble Court to allow this appeal and kindly be pleased to set aside the judgment of acquittal passed by the Judicial Magistrate First Class, Sitapur, District- Surguja (Chhattisgarh) dated 16/11/2018 in Nego Case no.385/2015 and accordingly convict the respondent for the offense committed under section 138 of the Negotiable Instrument Act, 1881, in the interest of justice and the appellant may be awarded with suitable compensation.” 5. Facts of the case are that in the year 2015 respondent-Vijay Kumar 4 Gupta was caught under financial crunch, therefore, he borrowed Rs.4,30,000/- from the petitioner with an assurance to return the same after some time. After few months, respondent-Vijay Kumar Gupta gave three cheques to the petitioner with following details:- i. ii. Iii. Cheque No. 334642 334643 334639 Date 31.07.2015 31.07.2015 03.09.2015 Amount Rs.2,00,000/- Rs.1,20,000/- Rs.1,10,000/- 6. After receiving the cheques the petitioner presented all three cheques at Batauli branch of State Bank of India on 3.9.2015, but the same returned to him with note that Drawer has “insufficient fund”. After receiving such information from the Bank the petitioner issued a legal notice to respondent-Vijay Kumar Gupta on 10.09.2015 which is statutory requirement under Section 138 (b) of the Act of 1881 and dishonor of cheques were informed to respondent-Vijay Kumar Gupta via notice and after waiting for statutory period, a complaint case was filed by the petitioner under Section 138 of the Act of 1881 before the jurisdictional Magistrate. In the complaint case, the petitioner has given details of each and every cheque with a copy of cheque and information supplied to him by the concerned bank. On a subsequent date, learned trial Court recorded the statement of the petitioner and the petitioner in his deposition has categorically mentioned about the issuance of three cheques, its dishonor and details of amount involved in the cheques. When the trial proceeded and the petitioner was asked to confine his case upto only one cheque bearing no.”334639’ 5 of Rs.1,10,000/- dated 03.09.2015, it was matter of surprise for the petitioner that he has presented his complaint case in respect of all three cheques, but the trial Court has has framed charges in respect of only one case. The Judicial Magistrate First Class, Sitapur framed the charge in respect of only one cheque bearing No.334639 of Rs.1,10,000/- dated 03.09.2015 and failed to frame the charge in respect of cheque bearing No.334632 of Rs.2,00,000/- dated 31.07.2015 and cheque bearing No.334643 of Rs.1,20,000/- dated 31.07.2015. The details of the charge framed were not available with the petitioner, therefore, he was not aware that learned trial Court has committed a gross error in not framing the charge against the private respondent as per the complaint filed by the petitioner. 7. The petitioner immediately filed an application dated 27.03.2017 before the JMFC for amendment of charge. In the application the petitioner has given sufficient reasons to believe the Court that due to lost of sight by learned trial Court the charges were not properly framed against respondent No.1 and he has been subjected to face trial in respect of one dishonoured cheque only. Learned JMFC, Sitapur rejected the application of the petitioner without going into the merits of the case. Simply it has been stated that the court has once taken a cognizance of the matter and has framed the charge it is not open for the petitioner to seek amendment. The petitioner being aggrieved by the orders dated 07.12.2015 and 7.4.2017 filed a revision before the revisional Court. Learned revisional Court firstly decided the application for condonation of delay in filing the revision 6 on 5.9.2018 and thereafter on 22.09.2018 the revisional Court has dismissed the revision filed by the petitioner. Thereafter the trial Court conducted the trial in respect of only one dishonored cheque bearing No. 334639 of Rs.1,10,000/- dated 3.9.2015 and by the order dated 16.11.2018 respondent-Vijay Kumar Gupta was acquitted. Hence, these CrMP and acquittal appeal. 8. The petitioner in person submits that the impugned order dated 22.09.2018, 5.9.2018 and 16.11.2018 are bad in law and deserve to be set aside. In the present case, the petitioner has completely followed the provisions and calculation of limitation of filing of complaint case is like this cheques were presented on 3.9.2015 a and same were returned on 3.9.2015 with a note that drawer has not sufficient fund in his account, notice was issued on 10.09.2015. Life of notice was upto 25.09.2015 and the complaint was filed on 12.10.2015 (within one month as per Section 142(c) of the Act of 1881). On the basis of undisputed fact stated above it is sufficient to hold that the finding given by the learned revisional Court that the reason for taking cognizance by the trial Court of only cheque is due to bar of limitation of presenting the complaint is perverse. The complaint case is in respect of all three cheques presented on a single day and notice was sent in connection of dishonor of all three cheques at the same time but surprisingly cognizance of one cheque is serious error on the part of the trial Court. The petitioner in person further submits that learned revisional Court has not correctly applied its mind while testing the validity and propriety of the application for 7 condonation of delay in filing the revision. Learned revisional Court has failed to appreciate that the petitioner has shown sufficient cause in not filing the revision in time. The petitioner has discharged his duties by offering explanation that he was not aware of the content of the charge and this may be verified from his deposition before the trial Court which was in respect of only one cheque. The duty of the trial Court was to inform the complainant that his complaint case has been taken into cognizance for only one cheque and for two other cheques same has been rejected so that the petitioner may have an occasion to challenge the same before the appropriate forum. In the present case, the petitioner was not informed about the contents of the charge. Petitioner in person also submits that learned trial Court invoked the provisions of Sections 269SS and 271D of the Income Tax Act. The trial Court observed that the petitioner has not produced the books of account to show that he had sum of Rs.4,30,000/- which was advanced in favour of the respondent and he is income tax payee. The ground taken for acquittal of the respondent is unsustainable for the reason that what does Section 269SS of the Income Tax says, in fact, does not cast any burden upon a person making advance in cash to record it in his returns and does not prevent any such cash advance from being made. The trial Court has principally relied on provisions of Section 269SS and 271D of the Income Tax Act which have absolutely no bearing and therefore the impugned judgment of acquittal of the respondent is unsustainable. He contended that learned trial Court has given weird reason for acquittal that the petitioner was not 8 successful to establish that for what clear reasons he has given Rs.4,30,000/- to the respondent, therefore, in absence of any clear debt, advance, agreement of transaction etc. the presumption of offender cannot be drawn against the respondent. Learned trial Court has unnecessarily went on appreciating the evidence related to two other cheques which has no bearing with the present case, if he has confined the trial to one cheque only than it is not permissible for him to appreciate execution of other cheques. He contended that learned trial Court has once held that the respondent has issued the cheque mentioned in Ex.P-1 and it is undisputed that the same cheque was dishonored than raising any negative presumption against the drawee is bad in law. Once it is proved that the respondent has issued the cheque and same has been dishonored than there is no space for any other presumption. Even otherwise, the petitioner has successfully established that the cheque was generated against loan taken by the respondent. As such, the CRMP and acquittal appeal deserve to be allowed and the impugned orders dated 22.09.2018, 5.9.2018 and 16.11.2018 deserve to be set aside. 9. On the other hand, learned counsel appearing for the private respondent opposes the submissions made by the petitioner in person and submits that the trial Court while acquitting the respondent has not committed any illegality or irregularity warrant interference by this Court. He further submits that the cheques were given towards the security for the borrowed amount without any liability and not for the payment of borrowed amount. 9 10. I have heard learned counsel for the parties and perused the impugned orders and other documents appended with these matters. 11. From perusal of the pleadings made in these matters, it appears that in the present case, the petitioner has completely followed the provisions and calculation of limitation of filing of complaint case as the cheques were presented on 3.9.2015 and same were returned on 3.9.2015 with a note that drawer has not sufficient fund in his account. Notice was issued to the private respondent on 10.09.2015 and life of notice was upto 25.09.2015 and the complaint was filed on 12.10.2015 (within one month as per Section 142(c) of the Act of 1881). The complaint case is in respect of all three cheques presented on a single day and notice was sent in connection of dishonor of all three cheques at the same time, but surprisingly the trial Court has taken cognizance of one cheque and not of other two cheques. Learned revisional Court has failed to appreciate that the petitioner has shown sufficient cause in not filing the revision in time. The petitioner has discharged his duties by offering explanation that he was not aware of the content of the charge. It was the duty of the trial Court to inform the complainant that in his complaint cognizance has taken only for one cheque and for two other cheques, same has been rejected, so that the petitioner may have an occasion to challenge the same before the appropriate forum. 12. In the present case, the petitioner was not informed about the contents of the charge. Learned trial Court invoked the provisions of 10 Sections 269SS and 271D of the Income Tax Act and observed that the petitioner has not produced the books of account to show that he had sum of Rs.4,30,000/- which was advanced in favour of the respondent and he is income tax payee. The trial Court has principally relied on provisions of Section 269SS and 271D of the Income Tax Act which have absolutely no bearing. Learned trial Court has given weird reason for acquittal that the petitioner was not successful to establish that for what clear reasons he has given Rs.4,30,000/- to the respondent, therefore, in absence of any clear debt, advance, agreement of transaction etc. the presumption of offender cannot be drawn against the respondent. 13. Learned trial Court has once held that the respondent has issued the cheque mentioned in Ex.P-1 and it is undisputed that the same cheque was dishonored than raising any negative presumption against the drawee is bad in law. Once it is proved that the respondent has issued the cheque and same has been dishonored, than there is no space for any other presumption. Even otherwise, the petitioner has successfully established that the cheque was given against loan/debt taken by the respondent. As per guidelines of Reserve Bank of India (RBI), the validity period of cheque from the date of issue is 3 months and the respondent gave three cheques to the petitioner dated 31.07.2015, 31.07.2015 and 03.09.2015 respectively and after receiving the cheques the petitioner presented all three cheques in State Bank of India, Batauli Branch on 3.9.2015, which were returned to him with a note that drawer has “insufficient 11 fund” in his account and thereafter notice was issued to the respondent on 10.09.2015 and the complaint was filed on 12.10.2015 (within one month as per Section 142 (c) of the Act of 1881. As such, framing of charge by the Judicial Magistrate First Class, Sitapur vide order dated 12.10.2015 only for one cheque bearing No.334639 of Rs.1,20,000/- dated 03.09.2015 is per se illegal and liable to be set aside. Furthermore, the trial Court has recorded the finding that the cheque was not given towards loan or debt, but from perusal of the statement of the petitioner (PW-1), it appears that the finding given by the trial Court is absolutely perverse and of the record. The petitioner nowhere stated that the cheques were given as security for borrowed amount and not for the payment of borrowed amount. 14. Considering the submissions advanced by learned counsel appearing for the parties, perusing the pleadings made and the finding given by the trial Court while framing the charge only for one cheque bearing No.334639 dated 03.09.2015 of Rs.1,10,000/-, which has been affirmed by the revisional Court and acquitting the respondent from charge vide order dated 16.11.2018, I am of the considered opinion that the trial Court as well as the revisional Court has committed grave legal error. 15. Accordingly, CRMP and acquittal appeal both are allowed and the order framing charge dated 12.10.2015 passed by the Judicial Magistrate First Class, Sitapur in respect of only one cheque bearing No.334639, orders dated 22.09.2018 and 5.9.2018 passed by the 12 revisional Court and order dated 16.11.2018 passed by the Judicial Magistrate First Class, Sitapur in Nego. Case No.385/2015 are hereby set aside. The matter is remanded back to the concerned trial Court for deciding the case afresh after providing due opportunity hearing to both the parties and to adduce the evidence. The parties are directed to appear before the trial Court on 10.02.2025. The trial trial Court is directed to expedite the trial and conclude the same as early as possible preferably within a period of three months from today, in accordance with law if there is no legal impediment. 16. The Registrar (Judicial) of this Court is directed to send a copy of this order along with original record to the concerned trial Court within a week from today. Sd/- (Ramesh Sinha) Chief Justice Bablu