Brijmohan Agrawal vs Ganda Rai Gupta
2022 Latest Caselaw 3252 Chatt

                                                                                               NAFR
                   HIGH COURT OF CHHATTISGARH, BILASPUR

                                  Acquittal Appeal No.97 of 2011

                                Judgment Reserved on : 25.3.2022
                                Judgment Delivered on :         5.5.2022

Brijmohan Agrawal, S/o Late Kalicharan Agrawal, aged about 57 years, R/o
Danipara, Raigarh, Tahsil and District Raigarh, Chhattisgarh
                                                                 ---- Appellant
                                    versus
Ganda Rai Gupta, S/o Late Makardhwaj, R/o Village Chhichhor Umariya,
Post Chhichhorumariya, P.S. and Tahsil Pussore, District Raigarh,
Chhattisgarh
                                                             ---- Respondent
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For Appellant              :       Shri Priyank Rathi, Advocate
For Respondent              :      Shri Kanwaljeet Singh Saini, Advocate appears on
                                   behalf of Shri Sanjay Agrawal, Advocate

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

Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal has been preferred against the judgment dated

28.2.2011 passed by the 4 th Additional Sessions Judge, F.T.C.,

Raigarh in Criminal Appeal No.69 of 2010, whereby the Learned

Additional Sessions Judge 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 1.8.2008 the

Respondent/accused obtained Rs.30,000 as loan from the

Appellant/Complainant. The Respondent issued a cheque bearing

No.057611 dated 8.8.2008 for the aforesaid amount in favour of the

Appellant. The Appellant presented the said cheque for clearance

in the bank on 12.8.2008, which was dishonoured due to

insufficient fund in the bank account of the Respondent. On

26.8.2008, the Appellant sent a legal notice through his Advocate to

the Respondent demanding his money of Rs.30,000. The

Respondent failed to refund the said amount to the Appellant within

the stipulated period. Thereafter, the Appellant preferred a

complaint under Section 138 of the Negotiable Instruments Act

before the Judicial Magistrate First Class, Raigarh. After recording

evidence and hearing the parties, the Judicial Magistrate First

Class, vide judgment dated 28.10.2010, convicted the Respondent

for the offence under Section 138 of the Negotiable Instruments Act

and sentenced him with rigorous imprisonment for 1 year and the

Judicial Magistrate also granted a compensation of Rs.30,000 in

favour of the Appellant under Section 357(3) of the Cr.P.C. Against

the said judgment of conviction, an appeal was preferred by the

Respondent before the Additional Sessions Judge, Raigarh. After

hearing the parties, the Learned Additional Sessions Judge, vide

the impugned judgment dated 28.2.2011, reversed the finding of

conviction and sentence given by the Judicial Magistrate First Class

and acquitted the Respondent of the charge under Section 138 of

the Negotiable Instruments Act. Hence, this appeal by the

Appellant/Complainant.

3. Learned Counsel appearing for the Appellant/Complainant

submitted that the Appellate Court erred in interfering with the

finding of fact that the Respondent had issued the alleged cheque

in discharge of debt and further erred in ignoring the presumption

raised against the Respondent under Section 139 of the Negotiable

Instruments Act. From the evidence adduced by the Appellant, it is

well established that the Respondent had obtained a loan of

Rs.30,000 from the Appellant and for discharging his liability he

gave the cheque in question which was dishonoured. The

Respondent has admitted his signature on the cheque. To rebut

the presumption under Section 139 of the Negotiable Instruments

Act, the Respondent has not adduced any evidence. He has not

examined himself or any other witness before the Trial Court. He

has also not replied the legal notice issued to him by the Appellant.

Thus, he has totally failed to rebut the presumption raised against

him under Section 139 of the Negotiable Instruments Act.

Therefore, the Additional Sessions Judge has erroneously

acquitted the Respondent.

4. Learned Counsel appearing for the Respondent/accused supported

the impugned judgment of acquittal passed by the Appellate Court.

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

perused the records of the Courts below minutely.

6. Before the Trial Court, the Appellant examined himself as

Complainant Witness No.1. In his Court statement, he deposed

that on 1.8.2008, he borrowed cash of Rs.30,000 to the

Respondent/accused. Thereafter, on 8.8.2008, the Respondent

issued a cheque of Rs.30,000 (Ex.P1) in his favour for discharging

his liability, which was dishonoured due to insufficient fund (Ex.P3).

A legal notice in this regard was sent by the Appellant vide Ex.P6 to

the Respondent on 26.8.2008, which was received by the

Respondent vide Ex.P8 on 27.8.2008. The statement of the

Appellant regarding borrowing amount of Rs.30,000 to the

Respondent on 1.8.2008 is not duly rebutted by the Respondent

during his cross-examination. The Respondent did not examine

himself nor did he produce any evidence in his favour before the

Trial Court. He also did not reply the legal notice which was given

to him vide Ex.P6. The cheque (Ex.P1) contains his signature.

Therefore, a legal presumption under Section 139 of the Negotiable

Instruments Act is there against the Respondent. He totally failed

to rebut the said presumption. Therefore, the finding of acquittal

arrived at by the Learned Additional Sessions Judge is not in

accordance with the evidence available on record. Therefore, the

judgment of acquittal dated 28.2.2011 passed by the Learned

Additional Sessions Judge is set aside. The judgment of conviction

dated 28.10.2010 passed by the Learned Judicial Magistrate First

Class is affirmed.

7. So far as sentence is concerned, considering the fact that the

alleged transaction was of the year 2008 and the Respondent is

facing the lis for the last 14 years, I am of the view that ends of

justice would be served if, while upholding the conviction, he is

sentenced with fine only. Therefore, it is ordered that the

Respondent shall pay fine of Rs.50,000 within 3 months from today.

In default of the payment, he shall be liable to suffer simple

imprisonment for 3 months. On deposit of the said fine of

Rs.50,000, the whole amount be paid to the Appellant/Complainant

within 15 days from the deposit as compensation.

8. Accordingly, the instant appeal is allowed to the extent shown

above.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal