) ------ Ghanshyam Kr. Agrawal @ Ghanshyam Agarwal, Son of Banarshi Lal Agarwal, proprietor v. The State of Jharkhand Rajinder Kaur wife of Late Ram Singh. S
Case Details
( 2025:JHHC:34180 ) IN THE HIGH COURT OF JHARKHAND AT RANCHI Acc. App.(SJ). No.113 of 2023 ------ (Against the acquittal of the accused persons/opposite parties/respondents by Judgment and order dated 11.06.2015 passed by the learned Additional Sessions Judge-IV, Jamshedpur in Criminal Appeal No. 114 of 2010) ------ Ghanshyam Kr. Agrawal @ Ghanshyam Agarwal, Son of Banarshi Lal Agarwal, proprietor of the firm known as MEXVIL, resident of Manjhi Tola, Adityapur, P.O. & P.S.-Adityapur, District-Saraikela Kharsawan. … Appellant Versus The State of Jharkhand Rajinder Kaur wife of Late Ram Singh. Satwant Kaur wife of Late Harinder Singh. Jatinder Singh son of late Ram Singh. 1. 2. 3. 4. All resident of Qr. No.6/A, Hume Pipe Basti, P.O.- Jamshedpur, P.S.-Sitaramdera, Jamshedpur, District-East Singhbhum. … Respondents For the Appellant For the State
Legal Reasoning
: Mr. Zaid Ahmad, Advocate : Mr. Arup Kr. Dey, Addl.P.P. ------ ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties on the merit of this appeal. 1 Acc. App.(SJ). No.113 of 2023 ( 2025:JHHC:34180 ) 2. Though, notice has been validly served upon the Respondent No.2 to 4, yet no one turns up on behalf of the Respondent No.2 to 4 in spite of repeated calls. 3. This acquittal appeal has been filed under Section 378(4) of the Code of Criminal Procedure against the judgment of acquittal dated 11.06.2015 passed by the learned Additional Sessions Judge-IV, Jamshedpur in Criminal Appeal No. 114 of 2010 whereby and where under, the learned Additional Sessions Judge-IV, Jamshedpur allowed the appeal and acquitted the Respondent nos.2 to 4; who were the convicts of Complaint Case (C-1) No.09 of 2002, in which case the judgement dated 25.03.2010 was passed by the learned Judicial Magistrate-1st Class, Jamshedpur, whereby and where under the Respondent Nos.2 to 4 were convicted for the offences punishable under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for a period of one year and to pay jointly a sum of Rs.2,20,000/- to the complainant. 4. The brief facts of the case is that the respondent nos.2 to 4 issued three cheques in favor of the complainant/appellant’s firm for Rs.50,000/- dated 11.08.2001, Rs.50,000/- dated 01.09.2001 and Rs.12,000/- dated 10.09.2001 and the said cheques were presented for encashment by the complainant/appellant, but the same were dishonored and in this respect a notice was issued to them, but the accused persons of the case did not pay the cheque amount, hence, the complainant/appellant filed a complaint on 04.01.2002. The complainant/appellant claims to be the proprietor of the firm-MEXVIL and the payment was made for the cost of 2 Acc. App.(SJ). No.113 of 2023 ( 2025:JHHC:34180 ) construction carried out by the complainant. On the basis of the complaint and the accompanying documents in the record, the learned Judicial Magistrate-1st Class, Jamshedpur found prima facie case and issued summons, the complainant examined 4 witnesses, no witness was examined on behalf of the defence. The cheques which were dishonoured have been marked as Exts.-3, 3/1 & 3/2, the cheque return memos have been marked as Exts.-4, 4/1, the copy of demand notice has been marked as Ext.-5, the postal receipts have been marked as Exts.-6,6/1 & 6/2. 5. CW-1 is the Tarachand Agrawal who is the brother of the complainant has supported the case of the complainant/appellant. CW-2 being the complainant/appellant himself has categorically stated that he is the sole proprietor of the firm-MEXVIL invested Rs.8,32,000/- for fast construction of the building and his brother booked a shop for Rs.7,20,000/- which was adjusted from the agreed amount of Rs.8,32,000/- and for the balance amount of Rs.1,12,000/-, the said three cheques were issued. CW-3-Brajesh Prasad is the Manager of Union Bank of India in which the accounts of the accused persons of the case was and he also proved the statement of the bank account of the accused persons which was marked as Ext.-8. CW-4-Amitabh Rudra is the Deputy Manager of the State Bank of India, Mango Branch and he stated about the cheques being deposited in his branch and the learned Judicial Magistrate-1st Class, Jamshedpur convicted and sentenced the Respondent No.2 to 4 as already indicated above. 3 Acc. App.(SJ). No.113 of 2023 ( 2025:JHHC:34180 ) 6. Being aggrieved by the judgment of conviction and order of sentence, the Respondent No.2 to 4 filed Criminal Appeal No.114 of 2010 which was ultimately heard and disposed of by the learned Additional Sessions Judge-IV, Jamshedpur by the impugned judgment. The learned Additional Sessions Judge-IV, Jamshedpur misdirected itself by referring to the proprietorship firm-MEXVIL (as MAXVIL company) and straightaway by raising doubts, as to whether the complainant/appellant herein was the proprietor or in what capacity issued the cheque and by taking into consideration that the second-third cheques were presented a few days after the first cheque, which was dishonoured was presented, went on to hold that the same was presented without the consent of the drawer of the cheque and by doubting the case of the prosecution allowed the appeal and acquitted the Respondent No.2 to 4. 7. Learned counsel for the appellant submits that the impugned judgment passed by the learned Additional Sessions Judge-IV, Jamshedpur in Criminal Appeal No. 114 of 2010 is contrary to the law and against the weight of evidence in the record. It is next submitted that the learned Additional Sessions Judge-IV, Jamshedpur committed a serious error of law and facts by finding fault with the date of filing of the complaint as some other date, though, the impression of the court seal on each of the pages of the complaint goes to show that the same was filed only on 04.01.2002. It is next submitted that the learned Additional Sessions Judge-IV, Jamshedpur has committed a grave error by referring the proprietorship firm of the complainant/appellant as MAXVIL 4 Acc. App.(SJ). No.113 of 2023 ( 2025:JHHC:34180 ) company even though the name of the proprietorship firm of the complainant/appellant is only MEXVIL. It is next submitted that the learned Additional Sessions Judge-IV, Jamshedpur failed to consider that in their statement recorded under Section 313 of the Cr.P.C., the respondent no.2 to 4 have not taken any plea of non-service of the demand notice nor they have set up such a defence in the cross- examination of the witnesses of the prosecution. 8. Learned counsel for the appellant relies upon the judgment of Hon’ble Supreme Court of India in the case of C.C. Alavi Haji vs. Palapetty Muhammed and Another reported in (2007) 6 SCC 555 and submits that in that case, even, though there was no averment in the complaint that the notice was sent to the correct address of the drawer of cheque by registered post, acknowledgement due, but returned envelope annexed to complaint showed the said fact and the Hon’ble Supreme Court of India held that the same is sufficient to comply the mandatory requirement of Section 138 of Negotiable Instruments Act. 9. Learned counsel for the appellant next relies upon the judgment of Hon’ble Supreme Court of India in the case of Jain P. Jose vs. Santosh & Another reported in 2022 LiveLaw (SC) 979 and submits that in that case, the Hon’ble Supreme Court of India has reiterated the settled principle of law that the presumptions under Section 139 of the Negotiable Instruments Act, includes a presumption that there exists a legally enforceable debt or liability It is lastly submitted that the impugned judgment passed by the learned Additional Sessions Judge-IV, 5 Acc. App.(SJ). No.113 of 2023 ( 2025:JHHC:34180 ) Jamshedpur in Criminal Appeal No. 114 of 2010 being not sustainable in law be quashed and set aside and the judgment of conviction passed by the learned Judicial Magistrate-1st Class, Jamshedpur in Complaint Case (C-1) No.09 of 2002 be restored. 10. Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the appellant and submits that the learned Additional Sessions Judge-IV, Jamshedpur has rightly held that the relationship of the complainant/appellant with the MAXVIL Company is suspicious and rightly allowed the appeal and acquitted the respondent nos.2 to 4. Therefore, it is submitted that this acquittal appeal being without any merit, be dismissed. 11. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that in the complaint itself, the complainant has described himself to be the proprietor of the firm known as MEXVIL. Hence, certainly, the learned Additional Sessions Judge-IV, Jamshedpur has committed a grave illegality by mentioning in the impugned judgement that the three cheques were issued as MAXVIL company; even, though there was no rhyme or reason to mention the word ‘company’ after MAXVIL, as the three cheques which was dishonoured were issued only in the name of MAXVIL. The perusal of the cross- examination of the witnesses of the complaint, particularly, the CW-1 and CW-2 who were the material witnesses of the case goes to show that it is the admitted case of the respondent nos.2 to 4 that they issued the 6 Acc. App.(SJ). No.113 of 2023 ( 2025:JHHC:34180 ) cheques, but their contention is that the cheques are issued towards the interest upon the amount of Rs.8,32,000/- as is evident from para-31 of the deposition of CW-1. 12. The Hon’ble Supreme Court of India in the case of T. Vasanthakumar vs. Vijaykumari reported in (2015) 8 SCC 378, paragraph-9 of which reads as under:- “9. Therefore, in the present case since the cheque as well as the signature has been accepted by the accused-respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence.” held that where the cheques as well as the signature has been accepted by the accused-respondent, the presumption under Section 139 of the Negotiable Instruments Act that the holder of a cheque received the cheque of a nature referred to under Section 138 of the Negotiable Instruments Act for the discharge in whole or in part of any debt or other liability. No doubt such presumption is a rebuttable one and the rebutal can be done both by way of process of eliciting something in the cross- examination of the witnesses of the complainant or by adducing any defence evidence. 7 Acc. App.(SJ). No.113 of 2023 ( 2025:JHHC:34180 ) 13. The Hon’ble Supreme Court of India in the case of Kalamani Tex and Another vs. P. Balasubramanian reported in (2021) 5 SCC 283, held that when the signature on the cheque is admitted, the trial court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. 14. Now coming to the facts of the case as already indicated above, the respondent nos.2 to 4 admit their signature on the cheque and they admitted issuing the cheques, so obviously this is a case where the presumption under Section 139 of the Negotiable Instruments Act is attracted, but this Court has no hesitation in holding that the respondent nos.2 to 4 have failed to rebut the presumption under Section 139 of the Negotiable Instruments Act either by eliciting anything in support of their contention in the cross-examination of the witnesses of the complainant or by adducing any defence evidence in support of their, this contention. 15. Under such circumstances, this Court has no hesitation in holding that the learned Additional Sessions Judge-IV, Jamshedpur has misdirected itself firstly by referring the establishment in whose favour the cheque was issued, as MAXVIL Company instead of MEXVIL; and also misdirected itself by not presuming the presumption as contained in Section 139 of the Negotiable Instruments Act. The learned Additional Sessions Judge-IV, Jamshedpur also committed a grave error by giving unnecessary and uncalled for importance to the cutting of the date in filing of the complaint as after cutting the date when the complaint was filed it has categorically been mentioned as 04.01.2002 and the date seal of 8 Acc. App.(SJ). No.113 of 2023 ( 2025:JHHC:34180 ) the court which was fixed on each of the pages of the complaint also bears the date 04.01.2002, thus, this Court has no hesitation in holding that the learned Additional Sessions Judge-IV, Jamshedpur has committed a perversity by allowing the Criminal Appeal No. 114 of 2010 without any valid or justifiable reason, hence, the judgment and order of acquittal dated 11.06.2015 passed by the learned Additional Sessions Judge-IV, Jamshedpur in Criminal Appeal No. 114 of 2010 is a perverse one and is not sustainable in law, accordingly, the same is quashed and set aside and the judgment of conviction and the order of sentence dated 25.03.2010 passed by the learned Judicial Magistrate-1st Class, Jamshedpur in Complaint Case (C-1) No.09 of 2002 is restored. 16. The Respondent No.2 to 4 of this appeal are directed to surrender before the learned Judicial Magistrate-1st Class, Jamshedpur or its successor court within 30 days from the date of this Judgment; failing which the learned Judicial Magistrate-1st Class, Jamshedpur is directed to issue non-bailable warrant of arrest against the Respondent No.2 to 4 for their apprehension to undergo the sentence. 17.
Decision
In the result, this acquittal appeal is allowed. 18. Let a copy of this judgment along with lower court records be sent to the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 29th of October, 2025 AFR/ Abhiraj Uploaded on 24/11/2025 9 Acc. App.(SJ). No.113 of 2023