Chattisgarh High Court
Yogendra Singh vs Rajkumar Satnami on 6 March, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:11111
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on : 10-01-2025
Judgment delivered on : 06-03-2025
Acquittal Appeal No.219 of 2017
Yogendra Singh S/o Shri Mahatam Singh, aged about 31 years,
R/o House No.203, Ramnagar Supela Bhilai, in front of Post
Office Bhilai, Tahsil and Distt. Durg (CG)
---- Appellant/complainant
Versus
Rajkumar Satnami, S/o Bahaliram, aged about 45 years (as per
deposition of the respondent) R/o Near Gaytri Kirana Stores,
Ghasidas Nagar, ACC Chhawni, Bhilai, Tehsil and Distt. Durg
(CG)
---- Respondent
For Appellant : Shri Avinash Chand Sahu, Advocate.
Respondent : None though served.
Hon'ble Smt. Justice Rajani Dubey, J
CAV Judgment
Challenge in this appeal is to the legality and validity of the
judgment dated 24.5.2017 passed by Judicial Magistrate First Class,
Durg in Complaint Case No.5353/2015 whereby the
respondent/accused has been acquitted of the charge under Section
138 of Negotiable Instruments Act.
02. Case of the prosecution, in brief, is that the respondent/accused
being known to the appellant/complainant and there relations being
cordial, in April, 2015 he requested the appellant for giving him Rs.1.10
lacs for meeting his personal needs, on which in April, 2015 the
appellant/complainant gave him Rs.1.10 lacs on credit. In lieu of
discharge of that liability, the respondent/accused gave him a cheque
bearing No.520876 dated 4.6.2015 amounting to Rs.1.10 lacs of State
Bank of India, Branch-Bhilai with the assurance that on being
presented, it would be encashed. However, when the
appellant/complainant presented the said cheque for encashment at
State Bank of India, Branch-Bhilai where he has an account, it got
dishonoured due to insufficient amount in the account of the drawer
and returned to the appellant with a memo to this effect. The
appellant/complainant then orally informed the respondent/accused
about dishonour of the cheque and demanded his money back but the
respondent/accused did not take any interest in it. Hence the
appellant/complainant sent a legal notice on 16.6.2015 through his
advocate to the respondent/accused which was received by him on
17.6.2015 but neither the respondent/accused made payment of the
said amount nor did he reply to that notice. Therefore, the
appellant/complainant filed a complaint case under Section 138 read
with Section 142 of 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 as many as seven 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. The respondent/accused has failed to
show that the cheque in question was not issued by him. As the
respondent/accused failed in rebutting the presumption under Section
139 of the NI Act, an adverse inference ought to have been drawn
against him and he should have been held guilty under Section 138 of
the NI Act. However, the learned trial Court without properly
appreciating the oral and documentary evidence on record acquitted
him of the said charge. As such, the impugned judgment 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 order dated 24.10.2019 of this
Court in CRR No.327/2019 in the matter of Ambika Traders and
another Vs. Roopchand and another.
05. None appears for the respondent despite service of notice.
06. Heard learned counsel for the appellant 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 on the ground that the cheque given
by the accused to him towards discharge of his debt when presented
for encashment before the bank, got dishonoured. To prove his case,
the complainant examined himself and filed the cheque (Ex.P/1),
cheque bounce memo of the bank (Ex.P/2), legal notice (Ex.P/3),
postal receipt (Ex.P/4) and the computerized acknowledgment
(Ex.P/5).
08. Defence of the respondent/accused is that his name is Rajkumar
Satnami whereas notice was sent by the complainant in the name of
Rajkumar Satyani and he did not receive any notice. In para 9 of
cross-examination of the complainant it was suggested by the accused
that the cheque in question was given as a guarantee for payment of
the amount in future and this fact was admitted by the complainant.
09. The Hon'ble Supreme Court in the matter of Bir Singh Vs.
Mukesh Kumar reported in (2019) 4 SCC 197 held in paras 20 & 24 of
its judgment as under:
"20. Section 139 introduces an exception to the general
rule as to the burden of proof and shifts the onus on the
accused. The presumption under Section 139 of the
Negotiable Instruments Act is a presumption of law, as
distinguished from presumption of facts. Presumptions are
rules of evidence and do not conflict with the presumption
of innocence, which requires the prosecution to prove the
case against the accused beyond reasonable doubt. The
obligation on the prosecution may be discharged with the
help of presumptions of law and presumptions of fact
unless the accused adduces evidence showing the
reasonable possibility of the non-existence of the
presumed fact as held in Hiten P.Dalal.
24. In K. N. Beena v. Muniyappan, this Court held that in
view of the provisions of Section 139 of the Negotiable
Instruments Act read with Section 118 thereof, the Court
had to presume that the cheque had been issued for
discharging a debt or liability. The said presumption was
rebuttable and could be rebutted by the accused by proving
the contrary. But mere denial or rebuttal by the accused
was not enough. The accused had to prove by cogent
evidence that there was no debt or liability. This Court
clearly held that the High Court had erroneously set aside
the conviction, by proceeding on the basis that
denials/averments in the reply of the accused were
sufficient to shift the burden of proof on the complainant to
prove that the cheque had been issued for discharge of a
debt or a liability. This was an entirely erroneous approach.
The accused had to prove in the trial by leading cogent
evidence that there was no debt or liability."
10. The Hon'ble Apex Court in the matter of Baslingappa Vs.
Mudibasappa reported in (2019) 5 SCC 418, held in para 23 of its
judgment as under:
23. We may now notice the judgment relied on by the
learned counsel for the complainant i.e. judgment of this
Court in Kishan Rao v. Shankargauda. This Court in the
above case has examined Section 139 of the Act. In the
above case, the only defence which was taken by the
accused was that cheque was stolen by the appellant. The
said defence was rejected by the trial Court. In paras 21 to
23, the following was laid down.
"21. In the present case, the trial Court as well as the
appellate Court having found that cheque contained
the signatures of the accused and it was given to the
appellant to present in the Bank, the presumption
under Section 139 was rightly raised which was not
rebutted by the accused. The accused had not led any
evidence to rebut the aforesaid presumption. The
accused even did not come in the witness box to
support his case. In the reply to the notice which was
given by the appellant, the accused took the defence
that the cheque was stolen by the appellant. The said
defence was rejected by the trial Court after
considering the evidence on record with regard to
which no contrary view has also been expressed by
the High Court.
22. Another judgment which needs to be looked into is
Rangappa v. Shri Mohan. A three-Judge Bench of this
Court had occasion to examine the presumption under
Section 139 of the 1881 Act. This Court in the
aforesaid case has held that in the event the accused
is able to raise a probable defence which creates
doubt with regard to the existence of a debt or liability,
the presumption may fail. The following was laid down
in paras 26 and 27:
26. In light of these extracts, we are in agreement
with the respondent-claimant that the presumption
mandated by Section 139 of the Act does indeed
include the existence of a legally enforceable debt
or liability. To that extent, the impugned
observations in Krishna Janardhan Bhat may not
be correct. However, this does not in any way cast
doubt on the correctness of the decision in that
case since it was based on the specific facts and
circumstances therein. As noted in the citations,
this is of course in the nature of a rebuttable
presumption and it is open to the accused to raise
a defence wherein the existence of a legally
enforceable debt or liability can be contested.
However, there can be no doubt that there is an
initial presumption which favours the complainant.
27. Section 139 of the Act is an example of a
reverse onus clause that has been included in
furtherance of the legislative objective of
improving the credibility of negotiable instruments.
While Section 138 of the Act specifies a strong
criminal remedy in relation to the dishonour of
cheques, the rebuttable presumption under
Section 139 is a device to prevent undue delay in
the course of litigation. However, it must be
remembered that the offence made punishable by
Section 138 can be better described as a
regulatory offence since the bouncing of a cheque
is largely in the nature of a civil wrong whose
impact is usually confined to the private parties
involved in commercial transactions. In such a
scenario, the test of proportionality should guide
the construction and interpretation of reverse onus
clauses and the defendant-accused cannot be
expected to discharge an unduly high standard of
proof.
23. No evidence was led by the accused. The defence
taken in the reply to the notice that cheque was stolen
having been rejected by the two courts below, we do not
see any basis for the High Court coming to the conclusion
that the accused has been successful in creating doubt in
the mind of the Court with regard to the existence of the
debt or liability. How the presumption under Section 139
can be rebutted on the evidence of PW 1 himself has not
been explained by the High Court."
11. Relying upon the aforesaid decisions of the Hon'ble Supreme
Court, this Court dismissed the revision petition (CRR No.327/2019)
filed by the accused Ambika Traders and another (supra) where the
accused also failed to rebut the presumption available under Section
139 of the NI Act.
12. In light of above decisions, if the facts of the present case and
evidence on record are seen, it is clear that here also the defence
suggested that the cheque in question was given only as a
security/guarantee for payment of the amount in future but in his
statement, the accused denied any transaction with the complainant.
Learned trial Court also considered that the cheque was given as a
security and dismissed the complaint. The findings recorded by learned
trial Court are not in consonance with the provisions of Sections 118
and 139 of the NI Act and also are contrary to the guidelines of the
Hon'ble Supreme Court as referred to above. Hence the impugned
judgment of acquittal of learned trial court is not sustainable in law.
13. In the result, the appeal is allowed. The impugned judgment
dated 24.5.2017 of learned trial Court is hereby set aside. The
respondent/accused is held guilty under Section 138 of the NI Act and
sentenced to pay a fine of Rs.1.50 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
Digitally
MOHD signed by
AKHTAR MOHD
KHAN AKHTAR
KHAN
Khan
