Jharkhand High Court
Tapash Biswas @ Bapi vs The State Of Jharkhand on 28 July, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:20753
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 546 of 2025
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Tapash Biswas @ Bapi, son of Niranjan Biswas, resident of College Road, P.O.
& P.S. Ghatshila, District East Singhbhum, Jharkhand
.... .... .... Petitioner
Versus
1. The State of Jharkhand
2. Tapas Adhikari, son of Prabodh Adhikary, Village Dahigora,
Hathijobra, P.O. & P.S. Ghatshila, District East Singhbhum, Jharkhand
.... .... .... Opp. Parties
With
Cr. Revision No. 498 of 2025
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Tapash Biswas @ Bapi, son of Niranjan Biswas, resident of College Road, P.O.
& P.S. Ghatshila, District East Singhbhum, Jharkhand
.... .... .... Petitioner
Versus
1. The State of Jharkhand
2. Tapas Adhikari, son of Prabodh Adhikary, Village Dahigora,
Hathijobra, P.O. & P.S. Ghatshila, District East Singhbhum, Jharkhand
.... .... .... Opp. Parties
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioner : Mr. Soumitra Baroi, Advocate
For the State : Mr. Fahad Allam, A.P.P.
(In Cr. Revision No. 546 of 2025)
Ms. Mohua Palit, Advocate
(In Cr. Revision No. 498 of 2025)
For the O.P. No.2 : Mr. Kripa Shankar Nanda, Advocate
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Order No.03 Dated : 28.07.2025
Although both these criminal revisions have been tied up for hearing
together, but since both arise out of different criminal cases, therefore, they
are heard separately and will be disposed of by separate judgments.
Instant criminal revision is preferred against the judgment of
conviction and sentence passed in Complaint Case No.325 of 2019 under
Section 138 of the N.I. Act whereby and whereunder S.I. for six months and a
fine of Rs.4,50,000/- has been imposed and judgment of conviction and
sentence have been affirmed in appeal.
2. As per the case of the complainant/opposite party no.2, on different
dates, petitioner had promised repaying it by postdated cheque bearing
no.148545 dated 30.07.2019 for a sum of Rs.1,00,000/-, Cheque No.148547
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dated 20.07.2019 of Rs.40,000/-, Cheque No.148552 dated 05.10.2019 for sum
of Rs.1,85,000/- and Cheque No.148554 dated 15.08.2019 for sum of
Rs.1,00,000/- were drawn on United Bank of India, Ghatshila. Cheques were
presented for payment which were dishonored for insufficiency of fund.
3. The complainant issued legal notice on 30.10.2019 and for its non-
payment, complaint case was filed on 18.11.2019. Learned trial Court after
considering oral and documentary evidences, recorded the judgment of
conviction which has been affirmed in appeal.
4. It is argued by the learned counsel on behalf of petitioner that
petitioner and complainant are business partners and due to business
transactions, accused had given signed cheques to the complainant, which
has been used by the complainant.
5. Instant criminal revision has been preferred against the judgment of
conviction and sentence passed in Complaint Case No.290 of 2019 under
Section 138 of the N.I. Act whereby and whereunder the petitioner has been
sentenced to undergo S.I. for six months and compensation of Rs.1,70,000/-
has been awarded in favour of the complaint. Judgment of conviction and
sentence have been affirmed in appeal.
6. As per the case of the complainant, he runs a small stationary shop and
the accused used to purchase the land and then sell the same to others with a
good profit. Opposite party no.2 had taken Rs.1,50,000/- with an assurance of
re-paying the same and to that end, cheque no.148556 for Rs.1,50,000/- dated
07.08.2019 drawn on United Bank of India, was given to the complainant.
Complainant presented the cheque for payment on 05.09.2019 which was
returned to the complainant on 12.09.2019 for insufficiency of funds. Legal
notice was served on 21.09.2019.
7. It is argued by the learned counsel on behalf of petitioner that the
petitioner and the complainant were business partners and thus, he misused
the aforesaid cheque.
8. It is submitted by learned counsel for the petitioner that the mode of
paying the debt to the petitioner has not been disclosed at all in the complaint
petition. It is also not clear that where the complainant had capacitated to pay
the said amount.
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9. Learned counsel for O.P. No.2 submits that the petitioner cannot take
plea that there was no legally enforceable debt against which the cheque was
issued. Once the cheque is proved, it is for the petitioner to rebut the
presumption of legally enforceable debt.
FINDING
10. Having considered the submissions advanced on behalf of both sides, I
do not find any infirmity in the impugned order.
11. There is no evidence to substantiate that cheque book was taken
fraudulently and misused by the complainant. It is beyond comprehension
that the petitioner kept the cheque book, so as to be assessed by the
complainant and misused by him. It is for this reason the Hon'ble Supreme
Court has held Uttam Ram v. Devinder Singh Hudan, (2019) 10 SCC 287,
21. There is the mandate of presumption of consideration in terms of the
provisions of the Act. The onus shifts to the accused on proof of issuance
of cheque to rebut the presumption that the cheque was issued not for
discharge of any debt or liability in terms of Section 138 of the Act
which reads as under:
"138. Dishonour of cheque for insufficiency, etc. of funds in
the account.--Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount of
money to another person from out of that account for the discharge,
in whole or in part, of any debt or other liability, is returned by the
bank unpaid, either because of the amount of money standing to the
credit of that account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that account by an
agreement made with that bank, such person shall be deemed to have
committed an offence and shall, ..."
25. In other judgment Rohitbhai Jivanlal Patel v. State of
Gujarat [Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC
106 : 2019 SCC OnLine SC 389 : AIR 2019 SC 1876] this Court held
as under : (SCC paras 15, 17 and 22)
"15. So far the question of existence of basic ingredients for
drawing of presumption under Sections 118 and 139 of the NI Act
is concerned, apparent it is that the appellant-accused could not
deny his signature on the cheques in question that had been drawn
in favour of the complainant on a bank account maintained by the
accused for a sum of Rs 3 lakhs each. The said cheques were
presented to the bank concerned within the period of their validity
and were returned unpaid for the reason of either the balance being
insufficient or the account being closed. All the basic ingredients of
Section 138 as also of Sections 118 and 139 are apparent on the
face of the record. The trial court had also consciously taken note of
these facts and had drawn the requisite presumption. Therefore, it
is required to be presumed that the cheques in question were drawn
for consideration and the holder of the cheques i.e. the complainant
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received the same in discharge of an existing debt. The onus,
therefore, shifts on the appellant-accused to establish a probable
defence so as to rebut such a presumption.
17. On the aspects relating to preponderance of probabilities, the
accused has to bring on record such facts and such circumstances
which may lead the Court to conclude either that the consideration
did not exist or that its non-existence was so probable that a
prudent man would, under the circumstances of the case, act upon
the plea that the consideration did not exist. This Court has, time
and again, emphasised that though there may not be sufficient
negative evidence which could be brought on record by the accused
to discharge his burden, yet mere denial would not fulfil the
requirements of rebuttal as envisaged under Sections 118 and 139
of the N.I. Act."
12. Under the circumstance for the reasons discussed above, this Court is
of the view that the defence of the cheque being misused and absence of legal
debt is not sustainable in view of the concurrent findings of both the learned
courts below.
13. I do not find any infirmity in the impugned orders. Both the criminal
revision petitions stand dismissed. Interlocutory Application, if any, stands
disposed of.
(Gautam Kumar Choudhary, J.)
Anit
