Rajesh Dhingra vs Vijay Kumar Dhavale
2022 Latest Caselaw 3208 Chatt

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                               Acquittal Appeal No.24 of 2011

                           Judgment Reserved on : 21.3.2022
                           Judgment Delivered on :              4.5.2022

Rajesh Dhingra, S/o Shri Govind Dhingra, aged about 38 years, R/o
Padmanabhpur, Durg, P.S. Durg, District Durg, Chhattisgarh
                                                                 ---- Appellant
                                    versus
Vijay Kumar Dhavale, S/o Shri Baba Saheb Dhavale, aged about (not known
to the appellant), R/o Dhavale Dairy, near Dhavale Engineering Works, Potiya
Road, Borsi, Durg, District Durg, Chhattisgarh
                                                             ---- Respondent

-------------------------------------------------------------------------------------------------------

For Appellant                      :                 Shri Ashish Surana, Advocate
For Respondent                     :                 Shri Arvind Shrivastava, Advocate

-------------------------------------------------------------------------------------------------------

Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal has been preferred against the judgment dated

15.11.2010 passed by the Judicial Magistrate First Class, Durg in

Complaint Case No.1362 of 2010, whereby the Learned Judicial

Magistrate First Class has acquitted the Respondent/accused of

the charge under Section 138 of the Negotiable Instruments Act.

2. Facts of the case, in short, are that on demand of the

Respondent/accused, the Appellant/Complainant gave him a sum

of Rs.50,000 as loan for some personal work as well as for his

profession. To discharge his liability, the Respondent/accused

gave two cheques each for Rs.25,000 (Ex.P1 and P2) to the

Complainant. Both the cheques were produced by the

Complainant for clearance before his bank which were dishonoured

due to insufficient fund in the account of the Respondent/accused.

The Appellant/Complainant sent a legal notice (Ex.P6) to the

Respondent/accused which was received by him through

acknowledgment (Ex.P8). Within the stipulated period, no amount

was given. The Appellant/Complainant filed a complaint under

Section 138 of the Negotiable Instruments Act before the

concerned Judicial Magistrate First Class. Before the Trial Court,

the Complainant examined himself. The Respondent/accused, in

his statement recorded under Section 313 of the Cr.P.C., denied

the allegations. It was the defence of the Respondent/accused that

undated and unnamed cheques were given as a guarantee. In his

defence, the Respondent/accused examined one handwriting

expert Dr. Ku. Sunanda Dhenge as DW1. After recording evidence

and hearing the parties, the Judicial Magistrate First Class

acquitted the Respondent/accused of the charge under Section 138

of the Negotiable Instrument Act. Hence, this appeal by the

Complainant.

3. Learned Counsel appearing for the Appellant/Complainant

submitted that the Respondent/accused has admitted his

signatures in both the cheques. Therefore, legal presumption is

there under Section 139 of the Negotiable Instruments Act against

the Respondent/accused that he provided the cheques to discharge

his liability. Thus, the finding of the Trial Court is not in accordance

with law and the evidence adduced by the Appellant/Complainant.

The Trial Court has committed gross error. Reliance was placed on

(2021) 5 SCC 283 (Kalamani Tex v. P. Balasubramanian).

4. Learned Counsel appearing for the Respondent/accused opposed

the arguments advanced on behalf of the Appellant/Complainant. It

was argued that from the admission made by the Complainant and

from the statement of handwriting expert Dr. Ku. Sunanda Dhenge

(DW1) it is clear that the cheques were given by the

Respondent/accused to the father of the Appellant as a guarantee.

From the evidence, it is also established that when the cheques

were issued, at that time, the date and the name of the beneficiary

were not mentioned in the cheques. Therefore, it is well

established that both the cheques were not issued to discharge any

liability. Thus, the presumption under Section 139 of the

Negotiable Instruments Act has been duly rebutted by the

Respondent/accused. Therefore, the Judicial Magistrate First class

has rightly acquitted the Respondent/accused.

5. I have heard Learned Counsel appearing for the parties and

perused the record of the Court below minutely.

6. There is no dispute on the point that in both the cheques (Ex.P1

and P2), signatures of the Respondent/accused are present. In his

Court statement, the Complainant has deposed that due to old

acquaintance, on demand of the Respondent/accused, he gave him

Rs.50,000 as a loan and at that time itself the Respondent/accused

had given him the cheques (Ex.P1 and P2). On which date, this

loan transaction took place, there is no evidence available on

record nor has the Complainant stated anything in this regard. In

paragraph 6 of his cross-examination, the Complainant has

admitted that in both the cheques the amounts were written in Hindi

and the dates were written in English. In paragraph 13, the

Complainant further admitted that the signature put in the

acknowledgment (Ex.P8) which was received against the legal

notice and the signature put in the cheques are different.

Handwriting expert Dr. Ku. Sunanda Dhenge (DW1), who examined

both the cheques, has also deposed that in both the cheques the

amounts of Rs.25,000 - Rs.25,000 were written and the signatures

were put 9 years prior to examination of the cheques and the dates

and the name of the beneficiary which are mentioned in the

cheques were written 7 years prior to examination of the cheques.

Meaning thereby, at the time of giving those cheques, they did not

contain name of the beneficiary and dates of their issuance. These

entries were made 2 years later.

7. Looking to the above evidence, which is available on record, it

appears that undated and without mentioning the name of the

beneficiary the cheques were given by the Respondent/accused

and 2 years later name of the beneficiary was mentioned in those

cheques. Therefore, there is substance in the argument that the

Respondent/accused had given both the cheques to the father of

the Appellant/Complainant as a guarantee. In fact, it is not

established that any amount was borrowed by the

Appellant/Complainant to the Respondent/accused and the

cheques were issued by the Respondent/accused for discharge of

his liability. Therefore, in my considered view, the

Respondent/accused has duly rebutted the presumption under

Section 139 of the Negotiable Instruments Act. The case law

referred to by Learned Counsel for the Appellant/Complainant is

distinguishable on facts. The Judicial Magistrate First Class has

rightly acquitted the Respondent/accused. I do not find any

illegality or perversity in the finding of the Judicial Magistrate First

Class.

8. Consequently, the appeal is dismissed. The impugned judgment of

acquittal is affirmed.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal