Swapan Kumar Sinha vs The State Of Jharkhand
2026 Latest Caselaw 2726 Jhar

Jharkhand High Court

Swapan Kumar Sinha vs The State Of Jharkhand on 7 April, 2026

Author: Rajesh Kumar

Bench: Rajesh Kumar

                                               2026:JHHC:9728

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
           Acquittal Appeal (S.J) No.17 of 2007
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[Against the Judgment of acquittal dated 20.02.2007, passed by the learned Additional Judicial Commissioner - II -cum- Special Judge No.1, CBI (AHD Scam), Ranchi in Cr. Appeal No.54 of 2006/ TR No.07 of 2006]

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Swapan Kumar Sinha, Son of Late Banbari Prasad, C/o Gautam Lal, 330/B, Ashok Nagar, Road N.4, P.O. Ashok Nagar, P.S. - Argora, District - Ranchi. ..... Appellant

Versus

1. The State of Jharkhand

2. Raj Kumar Pandey, Son of Late Mahavir Pandey, Resident of Bardman Compound, P.O and P.S - Lalpur, District -

    Ranchi.                           ..... Respondents
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                         PRESENT
         HON'BLE MR. JUSTICE RAJESH KUMAR
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    For the Appellant    : Ms. Omiya Anusha, Amicus Curiae
    For the State        : Mr. Satish Kr. Keshri, A.P.P

For the Resp. No.2 : Mr. Shwetang Kr. Tiwari, Advocate

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th Order No.11/ Dated: 07 April, 2026

1. Heard Ms. Omiya Anusha, learned Amicus Curiae, Mr.

Satish Kumar Keshri, learned A.P.P and Mr. Shwetang

Kumar Tiwari, learned counsel for the respondent No.2.

2. The present acquittal appeal has been filed by the

complainant/ appellant against the judgment of acquittal

dated 20.02.2007, passed by the learned Additional Judicial

Commissioner - II -cum- Special Judge No.1, CBI (AHD

Scam), Ranchi in Cr. Appeal No.54 of 2006/ TR No.07 of

2006, whereby and whereunder the judgment dated

30.01.2006, passed by the learned Judicial Magistrate, 1 st

Class, Ranchi in Complaint Case No.120 of 2003/ TR

No.849 of 2006, has been set aside and the respondent

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No.02 has been acquitted and has been discharged from

the liability of his bail bond.

3. The criminal law has been put into motion by lodging

a complaint case being Complaint Case No.120 of 2003 by

the appellant-complainant.

The brief facts of the case, as alleged in the

complaint, is that the complainant-appellant entered into

an agreement with the respondent No.02 for the sale and

purchase of a piece of land bearing R.S. Khata No.69, Plot

No.1441 comprising of an area 01 katha 08 chhatak in the

name of his wife Pushpa Ranhi and advanced Rs.50,000/-.

It has been further alleged that the said negotiation failed

and thereafter, the respondent No.02 issued a cheque of

State Bank of India, Kokar Branch bearing No.648510

dated 24.06.2002 for a sum of Rs.50,000/- for returning the

advance money. Thereafter, it has been alleged that the

cheque for encashment of the said amount has been placed

before the said Branch, but the same was bounced due to

insufficiency of fund vide the Bank Memo dated

24.12.2002. Thereafter, the complainant-appellant has sent

a legal notice against the respondent No.02 on 13.01.2003

stating about the bouncing of the cheque and noticing him

to return the amount forthwith but in spite of the same, the

respondent No.02 failed to give any reply to the legal

notice and also has not paid the said amount and as such

the complaint petition for initiating appropriate proceeding

under Section 138 of the Negotiable Instrument Act, 1881

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(in short N.I. Act) has been instituted.

The learned trial court after perusing the fact and

after going through the various exhibts, statement of the

witnesses both on behalf of the complainant and O.P. No.02

(Respondent No.02 herein) has come to the conclusion that

there are ingredients of the offence under Section 138 of

the N.I Act and held the O.P. No.02 guilty for the offence

under Section 138 N.I Act and accordingly sentenced him

to undergo S.I for one year and a compensation of

Rs.50,000/- payable to the complainant, under Section

357(iii) Cr.P.C a sum.

Against the said judgment and order of conviction,

O.P. No.02 has filed criminal appeal being Cr. Appeal No.54

of 2006/ TR No.07 of 2006 before the court of learned

Additional Judicial Commissioner - II -cum- Special Judge

No.1, CBI (AHD Scam), Ranchi and by the judgment dated

20.02.2007 the appellate court has acquitted the O.P. No.02

on the ground that the offence under Section 138 of the

N.I. Act has not been made out.

4. The relevant dates for consideration of this Court is

as follows :-

(i) 24.06.2002 is the date of issuance of cheque.

(ii) 24.12.2002 is the date of presentation of

cheque and also dishonour of cheque stating

"insufficient fund".

(iii) 13.01.2003 is the alleged date of issuance of

legal notice.

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(iv) 29.01.2003 is the date of return of the

unserved notice with an endorsement by the

employee of the postal department that "Not in my

beat" and return to the sender

(v) 11.02.2003 is the date of filing of the present

complaint petition.

5. The other factual matrix of the case is not in dispute.

For clarity, the question put under Section 313 Cr.P.C and

the response of O.P. No.02 is quoted herein-below :-

iz'u& vkius lkf{k;kas dk lk{; lquk gS \ mÙkj& th gk¡A

iz'u& vkids f[kykQ lkf{k;ksa dk dguk gS fd vkius f'kdk;rdÙkkZ LoIu dqekj flUgk dks fnukad 24@6@02 dks 50000@& :i;k dk psd] iwoZ esa f'kdk;rdÙkkZ ls yh xbZ jkf'k dks okil djus ds Øe es]a Hkkjrh; LVsV cSad] dksdj 'kk[kk jkaph dk psd la[;k 648510 tkjh fd;k tks fcuk Hkqxrku ds vukn`r gks x;kA bl lac/a k esa D;k dguk gS \ mÙkj& oknh eq>ls tehu fy, FksA Security ds rkSj ij psd fn;k FkkA th gk¡A psd vukn`r gqvk gSA

iz'u& mijksDr psd jkf'k ds vukn`r gksus ij f'kdk;rdÙkkZ LoIu dqekj flUgk vius vf/koDrk ds ek/;e ls vkids uke psd jkf'k ds Hkqxrku gsrq vf/koDrk uksfVl fn;kA blds ckotwn vkius mDr jkf'k dks f'kdk;rdÙkkZ dks okil ugha fd;kA D;k dguk gS \ mÙkj& th uksfV'k izkIr ugha gqvk gSA

iz'u& vkidks lQkbZ eas dqN dguk gS \ mÙkj& th eSa iSlk nks fd'rks esa ns pqdk gw¡A oknh us >qBk ds'k fd;k gSA

6. The appellate court has reversed the judgment of

conviction mainly on the following two grounds, which

have been assailed before this Court :-

(i) presentation of cheque is beyond six

months.

(ii) there is no service of notice, which is

mandatory under the N.I Act.

7. Learned Amicus Curiae, appearing on behalf of the

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appellant, has referred to para- 14 of the judgment, passed

by the Hon'ble Apex Court in the case of C.C Alavi Haji

Vs. Palapetty Muhammed & Anr., reported in (2007) 6

Supreme Court Cases 555, and has submitted that if the

notice has been sent on the correct address, then it will be

deemed to have been served and the onus lies upon the

opposite party to dispute the same.

In the present case, such onus has not been

discharged and as such, it will be presumed that notice has

been served to the O.P. No.02. Further, notice was returned

unserved on 29.01.2003 and the complaint petition has

been filed within 15 days i.e. on 11.02.2003 and as such,

the service of notice is there and the case has been filed

within time.

8. It has further been submitted that so far as the time

frame i.e. within six months is concerned, the cheque has

been presented on 24.12.2002 and the date on which the

cheque has been issued has to be excluded from the

calculation and if such exclusion is effected, then it is

within six months and further, the bank has returned the

cheque saying "insufficient fund" and not on the ground

that it is beyond the period of six months.

On the above grounds, prayer has been made to set

aside the order of acquittal, passed by the learned

appellate court.

9. On the other hand, learned counsel appearing on

behalf of the respondent No.02 has supported the

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judgment of acquittal stating that the law requires that a

cheque has to be presented within six months and there is

no exception to the said law, rather it is mandatory.

It has further been submitted that notice has been

returned by stating that "Not in my beat" and return to the

sender. Thus, notice has not come out from the department

and as such, the judgment of the Hon'ble Apex Court relied

upon by the learned Amicus in the case of C.C Alavi Haji

(Supra), is not applicable in the facts and circumstances of

the present case.

10. It has further been submitted that even if it is

presumed that unserved notice has come on 29.01.2003,

which has been accepted by the complainant, then the case

has been filed within 15 days, which is also not permissible

as per the mandate of the law.

11. Having heard learned counsel for the parties and

from perusal of records, this Court finds that the factual

matrix is not in dispute, which is as follows :-

(a) there is a commercial transaction between the

parties and the cheque has been issued for the

discharge of the legal liability and as such it is a

legally enforceable debt for which the cheque has

been issued.

(b) the complainant is the holder of a cheque in

due course and as such he has right to present the

same and on dishonour, he has every right to file a

complaint petition within the framework of Section

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138 of the N.I Act. Section 138 of the N.I Act 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, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless--

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."

Sub-clause (a) of Section 138 of N.I Act clearly

stipulates that the cheque has to be presented

within six months from the date on which it is

drawn, meaning thereby, the date of issuance of

cheque has to be counted. If it is counted then six

months will expire on 23.12.2002 while the cheque

has been presented on 24.12.2002. Thus, it is

beyond the period, as mandated under the law.

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                                               2026:JHHC:9728

(c) Notice has been issued, but it has never

travelled beyond the department, rather such

information has been given back to the sender of

the notice that it was within the department and as

such the complainant was well aware that the

notice has not been served upon the respondent

No.02 due to fault, if any, of the department.

(d) If the unserved report has been received by

the complainant on 29.01.2003 and the complaint

petition has been filed within 15 days, even then

15 days time frame has not been given to the O.P.

No.02 which is the mandate of the law.

12. In view of above discussions, this Court finds that the

complaint petition is beyond the mandate of Section 138 of

the N.I Act, which is mandatory in nature. It is a civil

liability which has been elevated to the criminality, but the

strict compliance has to be there. Since the complaint

petition is not within the parameter of Section 138 of the

N.I. Act, hence, this Court finds that the order of acquittal

dated 20.02.2007, passed by the court of learned

Additional Judicial Commissioner - II -cum- Special Judge

No.1, CBI (AHD Scam), Ranchi in Cr. Appeal No.54 of 2006/

TR No.07 of 2006, requires no interference.

13. In the result, the acquittal appeal stands dismissed.

14. Let the Trial Court Records be sent back to the Court

concerned forthwith, along with the copy of this Judgment.

15. Services rendered by Ms. Omiya Anusha, learned

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Amicus Curiae, is highly appreciable.

16. The Secretary, Jharkhand High Court Legal Services

Committee, shall pay the remuneration, as admissible, to

the learned Amicus, on submission of bill(s).

(Rajesh Kumar, J.) Jharkhand High Court, Ranchi Dated, the 07th April, 2026 Ravi-Chandan/- NAFR Uploaded on 08.04.2026

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