Chattisgarh High Court

Arvind Kumar vs Ganesh Limsakre on 8 May, 2025

Author: Narendra Kumar Vyas

Bench: Narendra Kumar Vyas

                                                            Page 1 of 9




                                                      2025:CGHC:21128



                                                                NAFR

                                          Reserved On : 14.02.2025

                                        Pronounced On : 08.05.2025


       HIGH COURT OF CHHATTISGARH AT BILASPUR

                       ACQA No. 951 of 2024

1 - Arvind Kumar S/o. Late Gajanand Kumar Aged About 33 Years R/o.
House No. P-327, Boriyakhurd, Santoshi Nagar, Raipur (C.G.)
(Complainant)
                                                      ... Appellant

                               versus

1 - Ganesh Limsakre S/o. Ganpatrao Limsakre R/o. Govt. Dental
College And Hospital, Rajbandha Maidan, Police Station -
Maudhapara, Tahsil And District - Raipur (C.G.) (Accused)
                                                      ---- Respondent

For Appellant : Mr. Anurag Khatri, Advocate For Respondent : Mr. D.K. Gwalre, Advocate

Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. JUDGMENT

1. The acquittal appeal has been filed by the appellant against the

judgment passed by learned Judicial Magistrate First Class,

Raipur dated 13.06.2024, in Complaint Case No. 2432 of 2016,

whereby the respondent/accused has been acquitted of the

charges under Section 138 of the N.I. Act.

2. The brief facts as reflected from the record are that, the appellant

and respondent are well acquainted to each other and due to

previous relationship, the respondent has asked for loan amount

of Rs. 10,00,000/- from the appellant on account of domestic

need and accordingly the appellant has given the amount of Rs.

10,00,000/- to the respondent on 29.08.2014 and to discharge

the said liability the respondent had given him chqeue of Rs.

5,00,000/- bearing No. 903741 dated 28.07.2016 payable at the

Oriental Bank of Commerce for part repayment of the said loan

amount. The cheque No. 903741 was deposited by the appellant

before the Bank for encashment which was dishonoured due to

'insufficient fund' on 01.08.2016. The appellant through his

counsel sent a legal notice despite this the respondent has failed

to repay the amount which has necessitated the complainant to

file complaint under Section 138 of Negotiable Instruments Act,

1881 which was registered as Criminal Case No. 2432/2016.

3. The complainant to prove his case has examined himself by

way of an affidavit as provided under Section 145 of N.I. Act,

1881 and exhibited documents i.e. Cheque bearing No. 903741

dated 28.07.2016 (Exhibit P/1), Cheque Return Memo (Exhibit

P/2), Notice dated 04.08.2016 (Exhibit P/3), Postal Receipt

(Exhibit P/4), pass book (Exhibit P/5) and Agreement (Exhibit

P/6) in support of his complaint. The complainant was

extensively cross-examined by the accused who has admitted

in paragraph 25 that agreement dated 29.08.2014 was

executed between him and the accused and also admitted in

paragraph 37 of the evidence that execution of the agreement

i.e. on 29.08.2014, the money transaction was done. He has

also admitted that it was agreed that the amount would be

returned in six months and the said period has already been

completed in the year 2015. He has also admitted that the

validity of the chque is 3 months and has also admitted that the

cheque was given on 29.08.2014 and its validity period has

already expired. The Witness has voluntarily stated that the

accused has given blank cheque to him. When he has

demanded the money, the accused has asked for returning the

old cheque and to issue fresh cheque. Then he has said that

the cheque was given as per the agreement, thereafter, the

accused has filled up the same cheque which was deposited

and dishonored. The witness has also admitted that in the

agreement it has not been mentioned that the accused has to

give blank cheque. He has also admitted that the accused has

given him blank cheque and Ex.P/1 (dishonoured cheque) has

been typed.

4. The accused has been examined under Section 313 of Cr.P.C.

wherein he has stated that he has neither taken any loan and

nor any transaction with the complainant has been taken place

and examined himself as DW/1. He has exhibited application

under Section 138B of the N.I. Act filed by the present appellant

against another person Sanjeev Dolia as Ex.D/1. He has also

stated that he has been falsely implicated and as per the

agreement two blank cheques have been obtained by the

complainant, and notice has also not been received by him. The

DW/1 has also stated that he has requested to his colleague to

arrange fund for him, accordingly, he met the complainant to

provide fund in response. In response to this he told him that

two blank cheques and one agreement are required.

Accordingly, as per the requirement of the complainant, the

accused has given blank signed cheques. The complainant

has already prepared the agreement dated 29.08.2014 and as

witnesses Vinod Verma and Bhushan Yadu have put their

signature. Thereafter, the agreement was notarized but no

money was given to him. He has requested the complainant to

return the said documents, but it has been misused by the

complainant. He has also stated that the complainant has also

lodged complaint against one Sanjeev Dolia for the similar

offence. The witness was extensively cross examined wherein

he has stated that he has not lodged any FIR against the threat

and coercive action taken by the complainant.

5. On the basis of evidence and material on record, the learned

trial Court has recorded its finding that the complainant has not

proved that he has given money to the accused and cheque

was given towards debt or liability. Accordingly, by the

impugned order the trial Court has dismissed the complaint and

acquitted the accused. Being aggrieved with this order the

complainant has filed this acquittal appeal.

6. Learned counsel for the appellant would submit that the learned

trial court has failed to appreciate the evidence available on

record and wrongly acquitted the accused. He would further

submit that accused has not disputed the validity of the cheque

hence it amounts to admission, therefore, trial Court should

have drawn presumption in favour of the appellant. It has been

further contended that the trial Court has committed illegality in

recording its finding that complainant was unable to give loan of

Rs. 10,00,000/- to the accused, as such wrong finding has been

recorded that the accused has given cheque towards debt and

liability, thus, he would pray for allowing the appeal.

7. On the other hand, learned counsel for the respondent would

submit that the complainant has not placed on record any

document to demonstrate that the said cheque was given by

the accused towards any debt or liability and thus he would

pray for dismissal of the appeal.

8. I have heard learned counsel for the parties and perused the

record.

9. Considering the rival submissions of the parties, the point

emerged for determination by this Court is whether the finding

of acquittal recorded by the trial Court suffers from perversity

and illegality warranting interference by this Court.

10. To appreciate the point framed by this Court, it is expedient for

this Court to go through the evidence brought on record. From

the evidence brought on record it is quite vivid that complainant

is unable to establish that the amount of Rs. 10,00,000/- was

given to the accused as no document was placed on record and

even the financial capacity of the complainant to pay such a

huge amount of Rs. 10,00,000/- has also not been placed on

record. The accused has also stated in the evidence that blank

cheque was taken by the complainant, as such he has rebutted

the presumption as required under Section 139 of the NI Act.

The complainant has neither put any cross-examination on this

point to the accused nor in his examination-in-chief he has

narrated about this factual matrix. The accused has also placed

on record the complaint filed by the complainant against other

person to demonstrate that complainant is doing money

laundering business which clearly establishes that the cheque

was given towards security of loan. In absence of any

explanation by the complainant regarding the fact that money

was not given to the accused, no material was placed on

record. As such, the learned trial Court has not committed any

illegality in recording its finding that the cheque given by the

accused was not towards any debt or liability, as such, the

ingredients of Section 138 of the NI Act have not been proved.

11. It is well settled position of law that the initial burden lies upon

the complainant then only the rebuttal is required to be done by

the accused. The Hon'ble Supreme Court in case of Rajesh

Jain vs. Ajay Singh reported in 2023 (10) SCC 148 has

considered the ingredients of the offence enumerated in

Section 138 of N.I. Act, 1881 and on its fulfillment, the offence

under Section 138 of N.I. Act, 1881 will be attracted if the

accused is unable to rebut the statutory presumption

contemplated by Section 139 of the N.I. Act, 1881. The Hon'ble

Supreme Court in paragraphs 26 to 28 of the aforesaid

judgment has held as under:

"26. In Gimpex Private Limited vs. Manoj Goel, this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure:

(1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account;

(i) The cheque being drawn for the discharge in whole or in part of any debt or other liability;

(iii) Presentation of the cheque to the bank arranged to be paid from that account,

(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount

(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and

(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.

27. In K. Bhaskaran v. Sankaran Vaidhyan Balan8 this Court had summarised the constituent elements of the offence in fairly similar terms by holding:

"14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice."

28. The five (5) acts as set out in K Bhaskaran's case

(supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex's case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability."

12. Again the Hon'ble Supreme Court in case of N. Vijay Kumar

vs. Vishwanath Rao N. reported in 2025 SCC Online 873 has

held in paragraphs 11, 13 and 14 which reads as under:-

"11. Considering the sum total of the above, we find that the probable defence on the part of the accused has been established. Once such a defence is established, the burden again shifts upon the complainant to now establish his case beyond a reasonable doubt, for after all, the effect of Section 138 of the N.I. Act is a criminal conviction. Reference may be made to Rajesh Jain v. Ajay Singh12 and, more particularly Para 44 thereof, which reads as under:

"44. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption "disappears" and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance."

13. Keeping in view the above factors, it cannot be said that the complainant was able to discharge the burden once it had shifted back upon him, with the accused having discharged the burden of Sections 118 and 139 of the N.I.

Act.

14. Consequent to the above discussion, we are of the view that the Trial Court was correct in recording a finding of acquittal in favour of the accused and reversal thereof by the High Court in terms of the impugned judgment, with particulars as in Para 1, was unjustified. As a result, the appeal is allowed."

13. Considering the fact and law on the subject, it is quite vivid that

the learned trial Court has not committed any illegality in

recording its finding of fact that cheque was not given towards

any debt or liability and also considering the well settled

position of law that if one view is in favour of the accused

acquitting him from the charges the appellate Court should not

normally disturb the finding of acquittal unless so cogent or vital

materials have been ignored by the trial Court or there is a clear

chance of conviction of the accused, this is not the situation in

the present case as there is no perverse finding recorded by the

trial Court. The trial Court has examined the evidence in detail

and the opinion of the trial Court goes against the complainant.