Chattisgarh High Court
Dr A. K. Guin vs Sanjay Rohra on 21 March, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:13542
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on : 10-01-2025
Judgment delivered on : 21-03-2025
Acquittal Appeal No.19 of 2017
Dr. AK Guin, aged about 62 years, S/o Late PC Guin, R/o
Akaltara, PS Akaltara, Distt. Janjgir-Champa (CG)
---- Appellant/complainant
Versus
Sanjay Rohra, D/o Laxman Das Rohra, aged 28 years, R/o
Shastri Chowk, Akaltara, PS Akaltara, Distt. Janjgir-Champa
(CG)
---- Respondent /Non-applicant
For Appellant : Shri Swayam Tenguria, Advocate on
behalf of Shri Mukesh Sharma, Advocate.
Respondent : Shri Siddharth Pandey, Advocate.
Hon'ble Smt. Justice Rajani Dubey, J
CAV Judgment
Challenge in this appeal is to the legality and validity of the
judgment dated 20.5.2016 passed by Judicial Magistrate First Class,
Akaltara, Distt. Janjgir-Champa in Criminal Case No.185/2013 whereby
the respondent/accused has been acquitted of the charge under
Sections 138 of Negotiable Instruments Act.
02. Case of the prosecution, in brief, is that the respondent/accused
borrowed a sum of Rs. 1.10 lac from the appellant/complainant on
17.7.2010 for meeting the household expenses and his fruit business
and on the same date an agreement to this effect was executed
between them. When the appellant/complainant demanded his money
back, on 17.12.2012 the respondent/accused gave him Cheques
No.960608 and 956601 of Rs.1 lac and Rs.10,000/- respectively.
However, when the appellant/complainant presented the said cheques
for encashment at Central Bank of India, Branch-Akaltara, it got
dishonoured on 17.12.2012 due to insufficient amount in the account of
the drawer and returned to the appellant with a memo to this effect.
Hence the appellant/complainant sent a legal notice on 24.12.2012
through his advocate to the respondent/accused but despite receipt of
the said notice, the respondent/accused did not make payment of
these cheques to him which led to filing a complaint case under
Section 138 of the 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 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. Learned trial Court has not properly
appreciated the oral and documentary evidence on record. He
submitted that though the cheques in question were issued as security
by the respondent/accused, however, on his failure to repay the
borrowed sum within the stipulated time period, when the said cheques
were presented for encashment, the same stood dishonoured due to
insufficient amount in the account of drawer. In these circumstances,
the learned trial Court was not justified in recording a finding of
acquittal in favour of the accused. Therefore, the impugned judgment
of acquittal 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 decision of the Hon'ble
Supreme Court in the matter of Sripati Singh (since deceased)
through his son Gaurav Singh Vs. The State of Jharkhand and
another, reported in 2021 0 Supreme (SC) 630.
05. On the other hand, learned counsel for the respondent/accused
supporting the impugned judgment would contend that complainant Dr.
AK Guin has admitted in cross-examination that the name and date in
the cheques were written by him. The respondent/accused had
borrowed Rs.1.10 lacs on 17.7.2010 and executed an agreement
(Ex.P/5) acknowledging receipt of the said amount. As per this
agreement, the respondent/accused agreed to repay the amount in
eight installments of Rs.15,000/- per month from 16.8.2010. The
respondent also handed over a cheque of Rs.1 lac as security for the
loan, enabling the complainant to withdraw the amount in case of
default. Learned trial Court rightly recorded a finding that the cheques
were issued as security and not for the discharge of any existing
liability. He would further submit that in reply the respondent/accused
had specifically stated that the alleged cheques were lost and the
complainant could not establish the fact that the alleged cheques were
issued in discharge of any legally enforceable debt/liability. Thus, in
the given facts and circumstances of the case and the evidence on
record, the impugned judgment is strictly in accordance with law. The
present appeal being devoid of any substance is liable to be dismissed.
Reliance has been placed on the decision of the Hon'ble
Supreme Court in the matter of Sudhir Kr. Bhalla Vs. Jagdish Chand
and others reported in (2008) 7 SCC 137.
06. Heard learned counsel for the parties 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 for dishonour of cheques dated
17.12.2012 bearing No.960608 & 956601 (Ex.P/1 & P/2) wroth Rs.1
lac and Rs.10,000/- respectively. The appellant/complainant examined
himself as PW-1 and one witness Raju Arora as PW-2. The
complainant filed the cheques as Ex.P/1 & P/2, notice as Ex.P/3, postal
receipt as Ex.P/4, the agreement as Ex.P/5 and Return Memo of the
bank as Ex.P/6. As per this Return Memo, the cheque bearing No.
960608 amounting to Rs.1 lac got dishonoured due to insufficiency of
fund in the account of the drawer. In cross-examination it was
suggested by the defence that the complainant got the signature of
Vinod Rohra along with the accused on the agreement Ex.P/5 on
account of his presence there and this suggestion was admitted by the
complainant. The complainant also admitted the suggestion that the
name and date in the cheques were written by him whereas the
amount was written by the accused. He denied the suggestion that the
accused had given him blank cheque.
08. The accused in his statement under 313 of CrPC simply made
bald denial of all the allegations and did not adduce evidence in
support of his defence. He also did not explain the fact as to how the
blank cheques came in possession of the complainant.
09. The Hon'ble Apex Court in the matter of Rajesh Jain Vs. Ajay
Singh; (2023) 10 SCC 148 has held in paras 33, 34, 35, 37, 55 & 56 of
its judgment as under:-
"33. The NI Act provides for two presumptions: Section 118
and Section 139. Section 118 of the Act inter alia directs
that it shall be presumed, until the contrary is proved, that
every negotiable instrument was made or drawn for
consideration. Section 139 of the Act stipulates that 'unless
the contrary is proved, it shall be presumed, that the holder
of the cheque received the cheque, for the discharge of,
whole or part of any debt or liability'. It will be seen that the
'presumed fact' directly relates to one of the crucial
ingredients necessary to sustain a conviction under Section
138.
34. Section 139 of the NI Act, which takes the form of a
'shall presume' clause is illustrative of a presumption of
law. Because Section 139 requires that the Court 'shall
presume' the fact stated therein, it is obligatory on the
Court to raise this presumption in every case where the
factual basis for the raising of the presumption had been
established. The rules discussed hereinbelow is common
to both the presumptions under Section 139 and Section
118 and is hence, not repeated-Reference to one can be
taken as reference to another But this does not preclude
the person against whom the presumption is drawn from
rebutting it and proving the contrary as is clear from the
use of the phrase 'unless the contrary is proved'.
35. The Court will necessarily presume that the cheque
had been issued towards discharge of a legally enforceable
debt/liability in two circumstances. Firstly, when the drawer
of the cheque admits issuance/execution of the cheque
and secondly, in the event where the complainant proves
that cheque was issued/executed in his favour by the
drawer. The circumstances set out above form the fact(s)
which bring about the activation of the presumptive clause.
[Bharat Barrel & Drum Mfg. Co. Vs. Amin Chand Pyarelal]
[(1999) 3 SCC 35].
37. As soon as the complainant discharges the burden to
prove that the instrument, say a cheque, was issued by the
accused for discharge of debt, the presumptive device
under Section 139 of the Act helps shifting the burden on
the accused. The effect of the presumption, in that sense,
is to transfer the evidential burden on the accused of
proving that the cheque was not received by the Bank
towards the discharge of any liability. Until this evidential
burden is discharged by the accused, the presumed fact
will have to be taken to be true, without expecting the
complainant to do anything further.
55.At the stage when the courts concluded that the
signature had been admitted, the Court ought to have
inquired into either of the two questions (depending on the
method in which accused has chosen to rebut the
presumption): Has the accused led any defense evidence
to prove and conclusively establish that there existed no
debt/liability at the time of issuance of cheque? In the
absence of rebuttal evidence being led the inquiry would
entail: Has the accused proved the nonexistence of
debt/liability by a preponderance of probabilities by
referring to the 'particular circumstances of the case"?
56. The perversity in the approach of the Trial Court is
noticeable from the way it proceeded to frame a question at
trial. According to the trial Court, the question to be decided
was 'whether a legally valid and enforceable debt existed
qua the complainant and the cheque in question (Ex.
CWI/A) was issued in discharge of said liability/debt'. When
the initial framing of the question itself being erroneous,
one cannot expect the outcome to be right. The onus
instead of being fixed on the accused has been fixed on
the complainant. Lack of proper understanding of the
nature of the presumption in Section 139 and its effect has
resulted in an erroneous Order being passed."
10. Learned trial Court did not properly appreciate the evidence led
by the complainant and the failure of the accused to rebut the
presumption under Section 139 of the NI Act, and committed an
illegality in holding that the complainant has failed to prove his case
beyond reasonable doubt. The findings so recorded by the learned
trial Court are not in consonance with the provisions of the NI Act. In
the given facts and circumstances of the case, the judgment relied
upon by the respondent/accused is of no help to him. Therefore, the
impugned judgment of acquittal is liable to be set aside.
11. In the result, the appeal is allowed. The impugned judgment
dated 20.5.2016 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.2 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/
Digitally signed (Rajani Dubey)
MOHD by MOHD
AKHTAR KHAN
AKHTAR Date:
KHAN
2025.03.22
Judge
13:27:57
+0530
Khan
