[Cites 10, Cited by 0]
Madhya Pradesh High Court
Shersingh vs Tejalal on 7 April, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:9332
1 CRR-1193-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL REVISION No. 1193 of 2025
SHERSINGH
Versus
TEJALAL
Appearance:
Shri Amish Sanghvi - Advocate for the petitioner.
Shri L. Shunondo Chandiramani- Advocate for the respondent.
(Heard on: 19.01.2026)
Delivered on: 07.04.2026)
ORDER
This criminal revision under section 438 read with section 442 of the
BNSS, 2023 is preferred being aggrieved by order dated 25.02.2025
(Annexure-A/1) in Criminal Appeal No.26/2022 arising out of judgment
dated 30.09.2022 in SCNIA No.64/2019 by JMFC, Badnawar, District Dhar
whereby application by respondent/accused under section 391 of the Cr.P.C.,
1973 has been allowed and setting aside the conviction as well as sentence of
the respondent/accused matter has been remanded back to record the
defense evidence and the document adduced with the application after giving
opportunity of hearing to both the parties.
2. Facts in brief are that:- revision petitioner/complainant filed an
application under section 138 of the Negotiable Instruments Act, 1881 before
the JMFC, Badnawar, District Dhar on 26.08.2019 alleging dishonour of
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cheque issued by respondent/accused dated 08.07.2019 for a sum of
Rs.3,25,000/- in lieu of money lend on 08.07.2019 itself and the cheque was
presented for collection and the same was returned vide memo dated
19.07.2019 mentioning the note of "insufficient fund in the account" and
notice dated 22.07.2019 (Exhibit- P/3) was served on the respondent through
counsel and the notice was replied on 05.08.2019 through counsel
mentioning that he has not received any amount from the
complainant/revision petitioner and he is not issued a cheque in favour of
complainant/revision petitioner. The evidence of the complainant under
section 142 (5) of the Negotiable Instruments Act, 1881 was recorded during
the trial and application was preferred by the respondent/accused questioning
the financial capacity of the revision petitioner/complainant and summoning
the statement of the bank account of the revision petitioner/complainant from
the period of 08.04.2019 to 08.07.2019. Complaint was rejected vide order
dated 22.06.2022 assigning the reasons that the burden to rebut the
presumption under section 139 of the Negotiable Instruments Act, 1881 is at
accused and he have to adduce the evidence himself in this regard and
thereafter closed the evidence. Respondent/accused was convicted under
section 138 of the Negotiable Instruments Act, 1881 and sentenced to
undergo RI for 3 months awarding compensation of Rs.7,000/- under section
357 of the of the Cr.P.C.,1973.
3. Challenging the impugned judgment both the parties preferred
appeal. Revision petitioner/ complainant filed criminal appeal No.32/2022
for awarding at least double of the cheque amount as compensation whereas
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respondent/accused preferred criminal appeal No.26/2022 for setting aside
the conviction and sentence. Respondent/accused preferred an application
under section 391 of the Cr.P.C.,1973 for taking on record the document
regarding the agricultural land of the revision petitioner/complainant in his
name as bhumiswami rights submitting that revision petitioner/complainant
submitted that 4 to 5 Biga land whereas in such land is in his bhumiswami
right or possession in village Bhosala and submitted the lease of document
khasra no.224 and 225 of Khate No.333 and 334. Application was opposed
by the revision petitioner/complainant. After hearing both the parties on
merits along with application under section 311 of the Cr.P.C., 1973 the
appellate court setting aside the judgment of conviction and consequently the
sentence and remanded back the matter to record evidence in connection
with documents by providing opportunity of hearing to both the parties
recording the reasons as mentioned in para-10 of the judgment but also
rejected the criminal appeal No.32/2022 preferred by the revision
petitioner/complainant regarding the reasons that enhancement of
compensation.
4. Challenging the aforesaid, this criminal revision is preferred on the
ground that appellate court remanded back the matter to consider the
documents regarding which the grounds were not raised in the appeal.
Revenue record is of the year 2024-25 when the appellant/complainant is
examined in the year 2021. Judgment passed by Additional Sessions Judge is
against principles of natural justice and liable to be set aside. Trial court
committed error in not considering the material evidence available on
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record.
5. Counsel for the revision petitioner/complainant have referred to
Ajitsingh Chehuji Rathod Vs. State of Gujarat and Another 2024 INSC 63.
6. Heard.
7. Counsel for the respondent opposes the revision petition.
8. Considered the relevant para of Ajitsingh Chehuji Rathod (Supra)
which is being reproduced below:-
"17. However, despite having
opportunity, the accused appellant
did not put any question to the
bank official examined in defence
for establishing his plea of
purported mismatch of signature
on the cheque in question and
hence, we are of the firm opinion
that the appellate Court was not
required to come to the aid and
assistance of the appellant for
collecting defence evidence at his
behest. The presumptions under
the NI Act albeit rebuttable operate
in favour of the complainant.
Hence, it is for the accused to rebut
such presumptions by leading
appropriate defence evidence and
the Court cannot be expected to
assist the accused to collect
evidence on his behalf.
9. The Apex Court in Sanjabij Tari Vs. Kishore S. Borcar & Another
2025 INSC 1158 has held that complainant need not to prove his financial
capacity unless the same is credibly set out by the accused at the earliest
opportunity in the reply to the notice under Section 138 of the Negotiable
Instruments Act, 1881.
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10. In this case, notice dated 22.07.2019 (Exhibit-P/3) mentions that
revision petitioner/complainant provided the money to the
respondent/accused by sale of his vehicle. The type of vehicle or other
details like registration number etc. of the vehicle were not mentioned. The
notice was replied and the receiving the money as well as issuance of the
cheque in favour of the complainant was also denied by the
respondent/accused. Complaint was also filed referring in Para-6 of the
complaint that complainant provided the money to the respondent/accused by
sale of his vehicle. Again there was no mention of the type of the vehicle and
its relevant details but in the evidence submitted through affidavit under
section 145 of the Negotiable Instruments Act, 1881 the above factum of the
reply was not mentioned and complainant omitted the factum of providing
the money by sale of his vehicle. In cross-examination he was questioned
regarding the financial capacity in para 7, 8 and 9. His application for
summoning bank statement and account was also rejected. In appeal also the
question of financial capacity was raised and the application under section
391 of the Cr.P.C., 1973 was preferred to rebut the credibility of his financial
capacity as mentioned in his evidence. Accordingly, it is not a case where
financial capacity of the revision petitioner/complainant was not assailed. If
the burden is shifted to the accused to prove the financial capacity then he
ought to have been provided the opportunity to adduce the documents. In
this case, complainant shifted from his earlier version and
respondent/accused was not being allowed to adduce the documentary
evidence to prove the financial capacity of the revision
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petitioner/complainant. Accordingly, trial court did not committed any
illegality in allowing the application under section 391 of the Cr.P.C., 1973
and even tested on the strength of Ajitsingh Chehuji Rathod (Supra).
Accordingly, criminal revision is dismissed.
(GAJENDRA SINGH)
JUDGE
ajit
