M/S Gumla Traders vs State Of Jharkhand
2024 Latest Caselaw 9931 Jhar

Jharkhand High Court

M/S Gumla Traders vs State Of Jharkhand on 15 October, 2024

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     Cr. Revision No. 968 of 2018
     M/s Gumla Traders, through its Proprietor Balkeshwar Singh, aged
     about 35 years, son of Late Raghaw Prasad Singh, resident of D.S.P.
     Road, Jawahar Nagar, P.O., P.S. and District- Gumla
                                                 ...     ...      Petitioner
                                -Versus-
     1. State of Jharkhand
     2. M/s Kaushar News Agency, through its Proprietor Md. Kaushar
        Alam, son of Md. Idris Alam, resident of Village- Ataria, P.O., P.S.
        and District- Gumla                      ...     ... Opp. Parties
                              ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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     For the Petitioner       : Mr. Shashank Shekhar Prasad, Advocate
     For the O.P. No. 2       : Ms. Jyoti Nayan, Advocate
                              ---

 Lastly heard on 21.08.2024                      Pronounced on 15.10.2024

This criminal revision has been filed against the judgment dated 30.06.2018 passed in Criminal Appeal No.16/2018 by the learned Sessions Judge, Gumla whereby and whereunder the criminal appeal filed by the petitioner-Complainant under Section 372 of Cr.P.C. against acquittal of the Opposite Party No.2, was dismissed. The opposite party no.2 was acquitted for offence under Section 138 of the Negotiable Instruments Act, 1881 vide judgment dated 19.02.2018 passed by learned Chief Judicial Magistrate, Gumla in Complaint Case No.25 of 2016 / T.R. No.35 of 2018.

Argument of the Petitioner

2. Learned counsel for the petitioner-Complainant submitted that both the learned courts have erred in law by acquitting the opposite party no.2 in the complaint case filed by the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act of 1881). He referred to Paragraph-28 of the trial court's judgment to submit that the learned trial court has observed that a reasonable doubt was created on account of the cheque leaf having been used in the year 2016 on the ground that the statement of account disclosed that the cheque leaf of that number series, both prior and after, were issued to 'Dainik Bhaskar' way back in the year 2014-15 itself. Learned counsel further submitted that the learned trial court has observed that evidence was led on record that the Cheque No. 003239 was issued in the year 2014 and it was highly improbable that the accused would have kept a cheque between series of cheques for the Complainant to be issued on 12.01.2016.

3. Learned counsel further submitted that there was presumption in favour of the petitioner in connection with the issuance of the cheque even on the touch stone of preponderance of probabilities, cannot be said to have been rebutted by the accused and therefore, the judgment of acquittal passed by the learned trial court and upheld by the learned appellate court calls for interference. He further submitted that both the impugned judgments are perverse and calls for interference.

4. The learned counsel relied upon judgments passed by the Hon'ble Supreme Court reported in 2015 (3) JCR 290 (SC) (T. Vasanthakumar -vs- Vijayakumari) and (2001) 8 SCC 458 (K.N. Beena -vs- Muniyappan and another).

Submissions on behalf of the Opposite Party No.2

5. The learned counsel submits that both the courts have considered the materials on record and have passed the judgments. There is no scope for reappreciation of materials before the revisional court and coming to a different finding. She referred to the cross-examination of the Complainant (CW-2) wherein he admitted that the cheque was not filled by the accused. She also referred to Paragraph-11 of the cross- examination of CW-2 to submit that the Complainant had admitted that bill related to the dues upon the accused was not produced by the Complainant and in Paragraph 12, he admitted that no account statement was produced by him before the court. She submitted that the Complainant did not exhibit any agreement with the accused with regard to the alleged liabilities.

6. The learned counsel submitted that a blank cheque was given to the manager of 'Dainik Bhaskar' namely, Nitesh Kumar Jha as security and the same was to be returned upon deposit of the demand draft. The demand draft was duly deposited which is apparent from Exhibit-A, but

the security cheque was not returned on the ground that the file was misplaced. This has come in the evidence of the accused, who was examined as D.W.-3 before the trial court. She submitted that it was this blank cheque which was diverted and utilized by the Complainant by filling it up and getting it bounced. The learned counsel submitted that there was no liability to the extent of Rs.4,50,000/- to be discharged by the accused. She also submitted that the Complainant had himself stated that the cheque was not filled by the accused. The learned counsel also submitted that the cheque leaf was issued in the year 2014. The sequence of cheque leaves prior and after were also utilized in 2014 and there was no occasion to keep one cheque leaf pending to be utilized in the year 2016. She submitted that in such circumstances, the learned trial court has rightly arrived at a conclusion that the accused had duly discharged the onus in the light of the principles of preponderance of probabilities. The burden shifted to the Complainant which the Complainant did not discharge. She also submitted that in revisional jurisdiction, this Court has no power to pass an order of conviction and interfere with the impugned orders of acquittal of the petitioner. Findings of this Court The case of respective parties before the trial court and the materials relied upon by them

7. The case of the petitioner-Complainant based on Complaint Case No.25/2016 presented on 23.02.2016 by M/s Gumla Traders through its Proprietor namely, Balkeshwar Singh is that he runs his business in the name of M/s. Gumla Traders and has taken an agency of the daily newspaper namely, 'Dainik Bhaskar' at Gumla, for which he had entered into a written agreement dated 07.10.2015 with 'Dainik Bhaskar'. The Complainant had given the responsibility to look after 'Dainik Bhaskar' to the accused and the accused incurred liability of Rs.4,50,000/- towards the Complainant arising out of the aforesaid business. In discharge of the liability, the accused issued Cheque No.003239 dated 12.01.2016 of I.D.B.I. Bank, Gumla Branch in favour of the Complainant which was returned due to 'insufficient funds'. The Complainant sent a legal notice dated 22.01.2016 which was served on

23.01.2016, but the accused neither paid the cheque amount of Rs.4,50,000/- nor sent any reply and the Complaint was filed on 23.02.2016.

8. The signature on the cheque and the time lines in connection with presentation till the filing of the complaint is not in dispute. The business relationship between the complainant and the accused is also not in dispute. A defence was taken by oral and documentary evidence that in the year 2014, the accused had business relation with 'dainik bhaskar' and the blank cheque was given to 'dainik bhaskar' as security which was replaced by a demand draft but the security cheque was not returned and was handed over to the complainant and was misused by the complainant in the year 2016 and bounced. The learned trial court acquitted the accused and the judgement of acquittal has been upheld by the learned appellate court which is under challenge. The core issue is whether the judgements of acquittal suffer from any perversity or material irregularity calling for any interference in revisional jurisdiction of this Court.

9. In course of trial, the Complainant examined two witnesses. C.W.-1 is Vibhay Kumar Sinha and C.W.-2 is Balkeshwar Singh, the complainant himself. The two witnesses were fully cross-examined by the defence. The complainant C.W-2 fully supported his case and the C.W-1 claims to be eye witness of signing and issuance of cheque by the accused to the complainant.

10. The following documents were exhibited by the Complainant: -

Distinguishing Description of By whom filed Date of Whether admitted mark or number documents admission after or without /articles objection Exhibit-1 Cheque Complainant 25.08.2017 Without objection No.003239 dated 12.01.2016 Exhibit-2 Bank Return Complainant 25.08.2017 Without objection Memo dated 12.01.2006 Exhibit-3 Advocate Notice Complainant 25.08.2017 Without objection dated 21.01.2016 Exhibit-4 Postal receipt Complainant 25.08.2017 Without objection dated 22.01.2016 Exhibit-5 Delivery slip Complainant 25.08.2017 Without objection from postal department Exhibit-6 Complaint Complainant 25.08.2017 Without objection Petition

Exhibit-7 C.C. of Complainant 09.02.2018 Without objection Complaint Case

Exhibit-8 C.C. of Complainant 09.02.2018 Without objection Complaint Case

Exhibit-9 C.C. of list of Complainant 09.02.2018 Without objection documents in Complaint Case

Exhibit-10 C.C. of list of Complainant 09.02.2018 Without objection documents in Complaint Case

Exhibit-11 C.C. of Complainant 09.02.2018 Without objection compromise petition in Complaint Case

Exhibit-12 C.C. of Complainant 09.02.2018 Without objection compromise petition in Complaint Case

Exhibit-13 C.C. of award in Complainant 09.02.2018 Without objection Complaint Case

Exhibit-14 C.C. of award in Complainant 09.02.2018 Without objection Complaint Case

11. The accused in his statement under Section 313 of Cr.P.C. was in complete denial. The accused examined 04 witnesses in his defence. D.W.-1 is Md. Usman Khan. D.W.-2 is Md. Hassan Ali. D.W.-3 is Md. Kaushar Alam and D.W.-4 is Tirath Manjhi who were also cross examined by the prosecution. The defence was primarily on the point that the account was already settled with the complainant; the accused was having business relationship with 'dainik bhaskar' in the year 2014 and the cheque involved in this case was given to the Sales Manager of 'dainik bhaskar', namely, Nitish Kumar Jha as blank cheque as security, and after a dispute with 'dainik bhaskar', the blank cheque was not returned in spite of demand and was handed over to the complainant by said Nitish Kumar Jha and was misused by the complainant and bounced. Their further defence was that the cheque book was issued by the bank in 2014 and the cheque number prior and after the disputed cheque were used in 2014 and it could not be believed that the disputed cheque was retained by the accused to be given to the complainant in the year 2016. The following documents were exhibited by the defence:

Distinguishing Description of documents By Date of Whether mark or number /articles whom admission admitted after filed or without objection Exhibit A Receipt dated 12.11.2014 for Defence 11.01.2018 With demand draft Rs.4,50,000/-

objection issued to Kaushar News Agency, Gumla with Remark 'Security Deposit from Kaushar News Agency' Exhibit B Paper bill dated 31.12.2014 of Defence 11.01.2018 With Dainik Bhaskar objection Exhibit C Vehicle challan dated 19.03.2015 Defence 11.01.2018 With objection Exhibit D Paper bill dated 31.03.2015 of Defence 11.01.2018 With Dainik Bhaskar objection Exhibit E Challan dated 11.03.2015 issued Defence 11.01.2018 With by Dainik Bhaskar in favour of objection M/s. Kaushar News Agency Exhibit F Video clip of conversation Defence 11.01.2018 With objection Exhibit G Bank statement of I.D.B.I. Bank Defence 20.01.2018 Without of M/s. Kaushar News Agency objection Exhibit H Passbook of UCO Bank Defence 20.01.2018 Without objection Exhibit I Bank receipt dated 20.10.2014 Defence 20.01.2018 Without objection Mark X for Print out of Mobile message Defence 11.01.2018 -------

identification dated 21.03.2017

12. A video clip was also sought to be relied upon to show the conversation of the accused with the authorities of 'dainik bhaskar'.

13. The prosecution had also filed documents relating to complaint case no.19 and 20 of 2016 (Exhibit-7 to 14) to show that some of the cheques were utilized by the accused even in the month of December, 2015, which bounced in 2016 and upon filing of cases, they ended into compromise and issuance of cheque book in the year 2014 was of no relevance.

The trial court's judgement

14. From perusal of the judgment passed by the learned trial court, this Court finds that the evidence-in-chief of the complainant witness 1 and 2 has been narrated in paragraphs 9 and 10 of the judgment but there is no discussion of their cross examination; in paragraph 11, it has

been simply mentioned in one line that the defence in order to contest the claim of the complainant, has cross-examined the prosecution witness and also examined four witnesses. Thereafter, the learned trial court proceeded to discuss the evidences of the defence witnesses one by one from paragraph no.12 to 15, but the cross-examination of the defence witnesses has also not been recorded. Thereafter, the learned trial court in paragraph 16 recorded the submission of the learned counsel for the defence and recorded the finding from paragraph 17 onwards. Paragraph 18 to 24 deal with the law regarding presumption in the matter of issuance of cheque with reference to Sections 118 and 139 of Negotiable Instruments Act and recorded finding at paragraph 25 held that the complainant through the complaint petition and oral testimony has alleged that the accused incurred liability of Rs.450,000/-

when he was working for him for distribution of daily newspaper "Dainik Bhaskar" and in order to discharge the aforesaid liability, the accused issued a cheque no.003239 dated 12.01.2016 drawn on I.D.B.I Bank, Gumla branch in favour of the complainant and recorded a finding that it was established un-rebutted from oral and documentary that the cheque issued by the accused in favour of the complainant was dishonoured and returned due to insufficiency of funds; legal notice was issued, but the accused did not respond to the notice within 15 days nor discharged his liability and hence the accused became liable for punishment under Section 138 of the Act of 1881 and the complaint petition was filed within one month after the issue of the demand notice, that is on 23.02.2016.

15. Paragraphs 26 and 27 of the trial court's judgement deal with law regarding the statutory presumption under Sections 118 and 139 of the Act of 1881. It has been observed that the statutory presumptions under the Act of 1881 are mandatory in nature and if it is not rebutted by evidence, the benefit would go to the complainant; the evidence of rebuttal should satisfy the test of a prudent person and the evidence must be sufficient to uproot the prosecution version on the touchstone of 'preponderance of probability'. Such rebuttal is to be by proof on 'preponderance of probability' and such evidence may be by production

of documents to disapprove the complainant version or by citing materials elicited from the cross-examination of the complainant and the witness, if any. It has been observed that under Section 139, the burden lies on the drawer of the cheque to rule out the existence of debtor-creditor relationship and the presumption under Section 118 is relating to the presumption that the cheque was made or drawn for consideration on the date, which the cheque bears and Section 139 enjoins the court to presume that the holder of the cheque received it for discharge of any debt or liability and the defence evidence should be such which the court can believe its existence as reasonably probable standard of reasons of that of a prudent person. The court also observed that it is settled that the burden of proving that the cheque was not issued against any debt or consideration is on the accused or the drawer of the cheque.

16. Thereafter, the learned trial court considered the defence evidences and recorded that the relationship of the accused with 'dainik bhaskar' was established and a receipt of Rs.4,50,000/- dated 12.11.2014 (Exhibit-A) was issued by the "Dainik Bhaskar" to the accused. Further, by referring to the bank statement (Exhibit-G) for the period from 20.05.2014 to 11.08.2014 observed that it was apparent that all the series of the cheques including the cheque presented by the complainant were issued in the year 2014-2015 meaning thereby that the cheque involved in this case was in relation to series of cheque book issued in the year 2014-15 and cheques were being utilized during the period 20.05.2014 to 11.08.2014. The trial court when ahead to record that during the period 2014 to 2015, the accused did not incur any liability towards the complainant even as per the case of the complainant. The case of the complainant was disbelieved on the ground that there was no reason to keep the cheque involved in this case to be given in the 2016 when the other cheque leaves both prior and post were utilized in the year 2014 and observed that this creates a reasonable doubt that the cheque involved in the present case was issued on 12.01.2016. On the basis of the aforesaid, the learned trial court reached the conclusion in paragraph 29 that the cheque in question was

issued in the year 2014 and it was highly improbable that the accused would have kept a cheque between series of cheques for the complainant to be issued on 12.01.2016. The learned trial court has referred all the documentary evidences of the defence from Exhibit A to F and Exhibit X and has recorded that these documents show that the accused had relationship with "Dainik Bhaskar" and recorded further finding by referring to the statement of account of the accused that in the year 2014, the statement of account disclosed that the cheque leaves of that number series were issued prior and past to the cheque issued to the "Dainik Bhaskar" and then in paragraph 29 recorded a finding that it was highly improbable that the accused would have kept a cheque between series of cheques for the complainant to be issued on 12.01.2016. The learned trial court concluded as follows: -

a. On the basis of the aforesaid finding, the learned trial court held that the cheque involved in the case was issued in the year 2014 and it was highly improbable that the accused would have kept a cheque between series of cheques for the complainant to be issued on 12.01.2016 and it was not the case of complainant that any post-dated cheque was issued to him by the accused and also that it was an admitted fact of the complainant that he entered an agreement with "Dainik Bhaskar" on 07.10.2015 and thereafter the complainant had transactions with accused and only thereafter liability would have been incurred. On the basis of such findings, the learned trial court recorded that the accused had discharged his onus.

b. Further, without any previous discussions with regard to the contradictions, if any, in the evidence of the two complainant witnesses, and inconsistencies, if any, between the affirmation made in the complaint and in the legal notice, the learned trial court abruptly recorded finding in paragraph 32 that the two material witnesses appearing for complainant is found to be full of contradictions and is not consistent with the affirmation made in the complaint and in the legal notice. Further, without any discussions of the cross-examination of the defence witnesses,

the learned trial court recorded that in view of the cross- examination and examination of DW1, DW2, DW3 and DW4 along with the documents discussed above in the judgement, the accused has well rebutted the presumption u/s 139 NI Act and that the accused has certainly raised a probable defence which has created a strong doubt over the existence of a legally enforceable debt or liability and issue of cheque in favour of the complainant. It is also relevant to note that in the entire judgment of the learned trial court, there has been no discussion of the cross-examination of the complainant witness including C.W-1, who claimed to be eye witness to the signature and issuance of cheque on the date mentioned in the cheque itself. Paragraph 32 of the trial court's judgement is quoted as under: -

"32. Thus, onus as expected to be discharged by the accused, has been discharged in this case. As discussed above, the testimony of the two material witness appearing for complainant is found to be full of contradictions and is not consistent with the affirmation made in the complaint and in the legal notice. There is not a chit of paper filed on part of the complainant to prove liability, if contrary evidence has been placed on record by the defence. In view of aforesaid and in view of the cross-examination and examination of DW1, DW2, DW3 and DW4 along with the documents discussed above, the accused has well rebutted the presumption u/s 139 NI Act, the accused has certainly raised a probable defence which has created a strong doubt over the existence of a legally enforceable debt or liability and issue of cheque in favour of the complainant."

17. While coming to such conclusion as mentioned in paragraph 16(a) above, the learned trial court linked the 'issuance of cheque book by the bank' to 'the utilization of cheques by the accused' and further considered the utilization of other cheques in the sequence, both previous and post, to come to a conclusion that the cheque involved in the present case was issued in the year 2014 and not in the year 2016 by observing that there was no reason that one cheque amongst the

sequence of cheques was kept to be given to the complainant in the year 2016 which created reasonable doubt about issuance of the cheque by the accused to the complainant on 12.01.2016. This Court is of the considered view that such an approach is ex-facie perverse and suffers from material irregularity as there is no such law or procedure that the cheques are to be utilized only in seriatim of its number and there is no such law that the cheque from cheque issued in the year 2014 has to be utilized in the same year. The aforesaid view taken by the learned trial court cannot be sustained even when seen from the point of view of a common prudent man's perspectives and understanding. The utilization of each cheque is an independent cause of action in law and has nothing to do with manner or date of utilization of other cheques or date of utilization of other cheques.

18. The approach of the learned trial court in recording finding as mentioned in paragraph 16 (b) above, that the defence has succeeded in raising a probable defence without considering the cross-examination of the complainant witnesses and also the cross-examination of the defence witnesses, also suffer from material irregularity and amounts to perversity. The learned court has recorded in the earlier paragraphs of the judgement that the documentary evidence produced by the defence related to establishing relation between the accused and the 'Dainik Bhaskar' in the year 2014. However, the present case was linked with the independent commercial relation involving the complainant. In absence of documentary evidence, the oral evidences both examination- in-chief and cross-examination of all the witnesses were required to be properly scrutinized. It is relevant to note that Exhibit A, which is a receipt of deposit of demand draft of Rs. 4,50,000/- by the accused with 'Dainik Bhaskar' was arising out of an independent agreement of the year 2014 and it has been said to be an admitted fact that the complainant entered into a different agreement with 'Dainik Bhaskar' in the year 2015 and independently engaged the accused to do the work of distribution of newspaper. On the face of Exhibit A, it is not linked to the cheque involved in the present case except that the amount is the same and through oral evidence, the defence has tried to build up a case

that initially the cheque involved in the present case was given as security by the accused to 'Dainik Bhaskar' in the year 2014 and later on the same was replaced by demand draft, but the security cheque was not returned and handed over to the complainant and misused by the complainant although the dues between the complainant and accused were settled. The said plea is purely based on oral evidences and accordingly, the oral evidences were required to be properly scrutinized, both examination-in-chief and cross-examination of all the witnesses of the complainant as well as the accused which has not been done in the present case and the findings suffer from material irregularity/perversity as one of the complainant witness C.W-1 claims to be the eye witness of signing and handing over of the cheque by the accused to the complainant and his evidence has been completely ignored.

Appeal filed by the complainant against acquittal by trial court

19. Being aggrieved by the judgment of acquittal, the complainant filed appeal before the appellate authority and inter alia raised the point that the Complainant Witness No.1[C.W-1] was cross-examined by the defence and upon cross-examination, he had clearly stated in paragraph 10 of the deposition that the cheque in question was issued in his presence and the accused had signed on it in his presence on 12.01.2016 [the date of issuance of the cheque] and no contradiction had come on cross-examination of defence to falsify or contradict the case of complainant. It was also the case of the complainant before the appellate court that the learned trial court ignored the Exhibits 7 to 14 which showed that the two cheques of the same series were also issued in the same period which was in the vicinity of the date of issuance of the cheque involved in this case and thus to challenge the findings of the trial court that it was highly improbable that the accused would have kept a cheque between the series of cheques for the complainant to be issued on 12.01.2016 and that the cheque involved was issued in the year 2014 itself. It was also raised that the defence failed to rebut the presumption under Sections 118 and 139 of the Act of 1881 but the learned court shifted the burden on the complainant.

The portion of the memo of appeal filed by the complainant questioning the aforesaid findings of the learned trial court are as under:

"4. That after substance of accusation U/s 138 of N.I. Act, Complainant has produced two witnesses in support of his case, CW 1 is Vibhay Kumar Sinha and C.W. 2 is complainant himself. C.W. 1 - Bhivay Kumar Sinha specifically deposed that complainant engaged Md. Kaushar Alam to look after day to day work of News paper agency. The accused incurred liability of Rs.4,50,000/- against the Complainant and in lieu of said liability accused has issued cheque bearing No.003239 on 12.01.2016 in favour of Complainant for Rs.4,50,000/- drawn in IDBI Bank Branch Gumla but the said cheque was bounced due to insufficient fund in the account of accused. Said witness was cross examined by the defence and on cross examination he has clearly stated in para 10 of the deposition the cheque in question was issued in his presence and accused has signed over it in his presence and cheque has been issued on 12.01.2016, no contradiction has been come on the cross examination of defence to falsefy or contradict the case of complainant.

5. That Balkeshwar Singh the complainant himself examined as C.W. 2 and categorically proved his case beyond any doubt and on cross examination not a single contradiction came up to disprove the case of prosecution..................."

(Internal page 4 and 5 of the memo of appeal)

8. For that the learned court below totally ignored the documentary evidence produced on behalf of the complainant which are marked as Ext.-7 to 14 on behalf of the complainant. Ext. 7 to 14 proved that accused / O.P. No.2 has issued two cheques bearing No.003219 and 003221 on 28.12.15 to another person and those two cheques have also been dishonoured for which two complainant case being No.19/16 and 20/16 have been filed where accused has admitted the same and compromised the case. These two cheques 3219 and 3221 have been issued on 28.12.15 but learned court below suo-moto hold that these two cheques have also been issued in the year 2014.

9. For that cheques in question of this case bearing No.3239 has been issued on 12.1.16 and from the admitted documents marked as Ext. 7 to 14 cheques No.3219 and 3221 have been issued on 28.12.2015 though learned court below held that cheques in question has been issued in the year 2014.

10. For that the defence has miserably failed to prove that there is no enforcebly debt towards the complainant but the learned court below shifted the burden of prove of encorceable due on the complainant against the Provision of N.I. Act. though enforceable due has been admitted by the defence.

11. For that learned court below totally ignored the provision provided u/s 118 and 139 of N.I. Act.

12.For that learned court below ought to have held that the defence has failed to rebute Under provision of N.I. Act."

(Internal page 11 and 12 of the memo of appeal) The appellate court's judgement

20. Paragraph 3 of the appellate court's judgement is with respect to the arguments of the complainant; paragraph 4 is with respect of the argument of the defence and the discussion of oral evidence of complainant is in paragraph 5 and that of oral evidence of defence is in paragraph 6 and in these two paragraphs, there is no discussion of any documentary evidences produced by either party. Further, while considering the evidence of C.W-1, the appellate court referred to cross- examination at paragraph 9 and 11 of the evidence but ignored the cross-examination at paragraph 10 of the evidence which was heavily relied upon by the complainant in his memo of appeal and this argument was also recorded amongst the arguments advanced by the complainant before the appellate court. It was asserted that C.W-1, on cross- examination, has clearly stated in para 10 of the deposition that the cheque in question was issued in his presence and accused has signed over it in his presence and cheque has been issued on 12.01.2016. It was submitted that no contradiction has come on the cross-examination of defence to falsify or contradict the case of complainant. The appellate court considered only the oral evidences of complainant in paragraph 5 and only the oral evidences of defence witnesses in paragraph 6 and recorded a finding in paragraph 7 of the judgement that from the oral and documentary evidence of the above noted witnesses, the court found that the complainant/appellant has failed to establish any charge against accused. The appellate court further recorded a finding in paragraph 7 itself that the accused has succeeded to bring home its defence that the Sale Manager, Ranchi Unit at the time of agreement had taken a blank cheque from the accused as a future security, which has been used to lodge this case by the complainant, when a dispute was created between the accused and the Sale Manager of Ranchi Unit. Paragraph 7 of the appellate court's judgement is quoted as under:

"7.From the oral and documentary evidence of the above noted witnesses, this court finds that the complainant / appellant has failed to establish any charge against accused, but the accused has succeeded to bring home its defence that the Sale Manager, Ranchi Unit at the time of agreement had taken a blank cheque from the accused as a future security, which has been used to lodge this case by the complainant, when a dispute was created between the accused and the Sale Manager of Ranchi Unit."

21. This Court finds that the case of the defence was that the cheque was given to "Dainik Bhaskar" by the accused as security way back in the year 2014. This Court is of the considered view that finding regarding giving of the cheque as security by completely ignoring the aforesaid paragraph 10 of the cross-examination of C.W-1 makes the judgement perverse on account of ignoring material evidence on the point of signing and handing over of the cheque. It is not a case where the court has considered the said evidence and returned a finding, rather it is a case where the said evidence has been completely sidelined and ignored while giving the finding although paragraph 9 and 11 of the cross-examination has been considered. This happened in spite of the fact that the complainant has raised specific arguments in the memo of appeal and also during oral arguments as recorded by the appellate court in paragraph 3 of the judgement that the trial court has completely ignored the evidence in the cross-examination of C.W-1 at paragraph 10 of the evidence where he claims that cheque in question was signed by the accused and issued on 12.01.2016 which certainly has a bearing on the claim of the accused that it was handed over to 'Dainik Bhaskar' way back in the year 2014 as a security cheque and was maliciously handed over to the complainant by Sales Manager of 'Dainik Bhaskar' and misused by the complainant.

22. After recording the aforesaid finding at paragraph 7, the learned appellate court referred to the provisions of law and discussed its requirements from paragraph 8 to 13 and in paragraph 14 recorded the fact regarding bouncing of the cheque by referring to Exhibit 1 to 5 of the prosecution. In paragraph 15 of the judgment, the learned appellate

court referred to the provisions of Sections 118 and 139 of the Negotiable Instruments Act, 1881, and observed that it is a settled principle that the burden of proving that the cheque was not issued against any debt or consideration is on the accused. The accused must rebut the presumption with evidence that the court finds believable or considers reasonably probable, using the standard of reasoning of a prudent person. To discharge this onus, the accused can rebut the presumption by cross-examining the complainant's witnesses and by proving the defense on the 'preponderance of probabilities'. Then the learned appellate court without any further discussion of the materials on record straightaway recorded its findings in paragraph 16 of the judgement which is quoted as under: -

16. After going through the entire facts discussed above, this court come to the conclusion that the onus as expected to be discharged by the accused, has been discharged in this case. As discussed above, the testimony of the two-material witness appearing for complainant is found to be full of contradictions and is not consistent with the affirmation made in the complaint and in the legal notice. There is not a chit of paper filed on part of the complainant to prove liability, if contrary evidence has been placed on record by the defence. In view of aforesaid and in view of the cross examination and examination of DW-1, DW-2, DW-3 and DW-4 along with the documents discussed above, the accused has well rebutted the presumption u/s 139 NI Act, the accused has certainly raised a probable defence which has created a strong doubt over the existence of a legally enforceable debt or liability and issue of cheque in favour of the complainant. The case law relied upon by the appellant in the opinion of this court is not applicable to the facts and circumstances of this case, which is reported in J.C.R 2015 (3) S.C page 290 T. Vasanthakumar Versus Vijayakumari."

23. This Court finds that after having discussed the law regarding discharge of onus, the learned appellate court straightaway came to the conclusion in paragraph 16 that onus as expected to be discharged by the accused has been discharged. Moreover, such finding has been

recorded without discussing the finding of the learned trial court in this regard which has been held to be perverse as discussed above. Further, it has also been held in paragraph 16 of the appellate court's judgement that "as discussed above" the testimony of the two material witnesses of the complainant is full of contradictions and is not consistent with the affirmation made in the complaint and in the legal notice, however in the entire body of the appellate court's judgement, there is no discussion as to how the testimony of the two material witnesses of the complainant is full of contradictions and is not consistent with the affirmation made in the complaint and in the legal notice. The learned appellate court also recorded in paragraph 16 of the judgement that the petitioner has not produced a chit of paper to prove the liability and in view of the examination and cross-examination of the defence witnesses along with the documents discussed earlier, the accused has rebutted the presumption. However, from the body of the judgement right from paragraph 5 of the judgement, there is no discussion of any of the documents produced by the defence and there is no discussion of the Exhibits 7 to 14 produced by the complainant to challenge the finding of the learned trial court. This Court has already held as aforesaid that the finding of the learned appellate court at paragraph 7 of the impugned judgement that the cheque involved in the present case was issued as security cheque by the accused to 'Dainik Bhaskar' way back in the year 2014 (as claimed by the accused) is perverse. This Court finds that the learned appellate court has practically copied the findings of the learned trial court in paragraph 32 of the trial court's judgement and pasted in paragraph 16 of the appellate court's judgement and upheld the trial court's judgement vide paragraph 17 of its judgement without any discussion as to how it arrived at such findings in paragraph 16.

24. This Court is of the considered view that the learned appellate court has committed serious error by ignoring material evidence on record while arriving at its findings, and its findings are non-speaking on many aspects of the matter. The date of issuance of cheque is the most crucial fact in this case, and the oral and documentary evidences

adduced on behalf of both the parties, including their cross- examinations, were required to be examined while recording a finding regarding the date of issuance of cheque, and to whom it was issued, and how it came into the possession of the complainant and then come to the conclusion on the point as to whether the defence could prove its case even on the touchstone of the principles of 'preponderance of probabilities' that the cheque was issued as security cheque to 'Dainik Bhaskar' by the accused and it was the same cheque which was handed over to the complainant and misused to get it bounced and lodge the case. It is important to note that the accused claims existence of business relation with "Dainik Bhaskar" in the year 2014 and the complainant claims existence of business relation with "Dainik Bhaskar" in the year 2015 and also existence of business relation with the accused. All the business relations are relating to distribution of newspaper published by "Dainik Bhaskar".

25. In the entire discussion, the learned appellate court has omitted to discuss the aforesaid material evidence of C.W. 1, who had clearly deposed that the cheque was signed and handed over to the complainant on 12.01.2016 by the accused in his presence. The appellate court in paragraph 16 almost reproduced the findings of the learned trial court [paragraph 32] and held that the testimony of two material witnesses appearing for the complainant was found to be full of contradictions and was not consistent with the affirmation made in the complaint and in the legal notice, although in the entire body of the appellate court's judgment also, there is no discussion with regard to the alleged contradiction of the testimony of the two material witnesses of the complainant and inconsistencies with the affirmation made in the complaint and in the legal notice.

26. In view of the aforesaid findings and the facts and circumstances, this Court is of the considered view that the matter is required to be remitted back to the learned appellate court for passing fresh order in accordance with law.

27. Consequently, the impugned appellate order is set-aside and the matter remitted back to the appellate court with a direction to pass fresh

order in accordance with law taking into consideration of the evidences on behalf of the complainant (both oral and documentary); trend of cross-examination of the prosecution witnesses; statement of the accused under Section 313 of Cr.P.C., evidence of defence witnesses (both oral and documentary) with their cross-examinations and then come to the conclusion as to whether the prosecution has been able to make out a case under Section 138 of Negotiable Instruments Act, 1881 and whether the defence has been able to discharge their onus with respect to presumption under Sections 118 and 139 of Negotiable Instruments Act, 1881 on the touchstone of 'preponderance of probabilities' . All contentions on behalf of the respective parties are kept open.

28. The parties to appear before the appellate authority on 11th of November 2024 at 11.00 am and upon their appearance, fresh order be passed within a period of one month from the date of their appearance after giving them an opportunity of hearing.

29. This criminal revision is disposed of in the aforesaid terms.

30. Let a copy of this Judgment be communicated to the concerned appellate court through FAX/e-mail.

(Anubha Rawat Choudhary, J.) Saurav/-