[Cites 16, Cited by 0]
Madhya Pradesh High Court
Shailendra Singh vs Radheyshyam on 25 February, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:16421
1 CRA-637-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 25th OF FEBRUARY, 2026
CRIMINAL APPEAL No. 637 of 2026
SHAILENDRA SINGH
Versus
RADHEYSHYAM
Appearance:
Shri Sanjay Sarvate - Advocate for the appellant.
Shri Anil Upadhyay - Amicus Curiae for respondent.
JUDGMENT
With the consent of learned counsel for the parties, the matter is heard
finally.
2. This appeal has been filed under Section 378(4) of the Code of
Criminal Procedure, 1973 by the victim/complainant against judgment dated
01-02-2012 passed by the Second Additional Sessions Judge, Khandwa in
Cr.A. No.230/2011 (M.P.) whereby the learned Court has reversed the
judgment dated 01.10.2011 passed by Chief Judicial Magistrate, Khandwa in
Criminal Case No.1050/2009, whereby the learned Court below convicted
the respondent under Section 138 of N.I. Act and awarded sentence of 02
years. Vide impugned judgment learned Appellate Court set aside the
judgment dated 1.10.2011 and acquitted the respondent from the aforesaid
Section.
3. The brief facts of the case, as alleged by the appellant/complainant (in
short "complainant") in the complaint filed under Section 138 of the
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Negotiable Instruments Act, 1881 (for short 'the NI Act") alleging that the
respondent was in need of money in connection with his domestic need,
therefore appellant gave a sum of Rs. 2.00 Lacs. Further the case of appellant
is that respondent gave post dated cheque of Rs. 2.00 Lac dated 13.1.2009.
On being presented the said cheque in the bank, the same got dishonoured
due to the reason "insufficient fund". The accused/respondent did not return
the amount even after receipt of demand notice on behalf of complainant.
4. The accused denied the allegations made in the complaint and stated
that he has been falsely implicated in the case. His defence is that he lost his
cheque book and the complainant by preparing a forged cheque, filed the
complaint against him.
5. The learned Trial Court, after hearing the parties and considering the
material on record, vide judgment dated 01.10.2011 convicted the accused
for the offence punishable under Section 138 of the N.I. Act and sentenced to
undergo R.I. for 02 years and directed to pay compensation of Rs.2,22,000/-
to the complainant under Section 357 (3) of Cr.P.C. with default
stipulations.
6. Being aggrieved by the judgment passed by the learned Trial Court,
the accused preferred an appeal. The learned appellate Court setting aside the
judgment passed by the learned Trial Court allowed the appeal and
eventually acquitted the accused of the offence under Section 138 of NI Act.
Hence, the present appeal.
7. It is submitted by the learned counsel for the appellant/complainant
that the learned Appellate Court erroneously acquitted the respondent and set
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aside the judgment of conviction passed by the learned trial Court. It is
categorically stated in the complaint as well as in the chief examination in
the form of affidavit of complainant that earlier an amount of Rs. 2 Lac has
been given to the accused as advance and in turn, the accused issued a
cheque bearing No.150226 dated 13.1.2009. Therefore, it is not the case of
the complainant that on the same day when the amount has been advanced,
the cheque has been issued and on the same day it has been submitted in the
concerned Bank for payment. It is also submitted that accused has not
challenged the execution of Exhibit P/1 Cheque and presumption under
Sections 118 and 139 of Negotiable Instruments Act arises in favour of
complainant. The due service of notice (Exhibit P/5) on the accused has also
been established vide Exhibit P/6. The very fact has also not been challenged
by the accused. Therefore, he prays for setting aside the impugned Appellate
judgment dated 01.02.2012 passed in Cr.A. No.230/2011.
8. Per contra, learned counsel for the respondent/accused has submitted
that the learned appellate court has in para 12 and 13 of its judgment has
rightly held that the cheque has been received on the same day when the
advance has been made i.e. on 13.1.2009 and on the same date, it has been
submitted before the concerned Bank for its payment. Moreover, the
complainant has not clarified how he has managed the fund which allegedly
advanced to the accused. Therefore, no presumption under Sections 118 and
139 of N.I. Act can arises in favour of complainant. Thus, prays for rejection
of this appeal.
9. Heard learned counsel for the parties and perused the record.
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10. The appellant herein is the complainant who filed a complaint under
Section 138 of the N.I. Act, against respondent/accused-Radhyshyam. The
learned trial Court has convicted the accused for the offence and sentenced
as mentioned above. While in appeal, the learned lower appellate Court has
acquitted the accused on the ground that the complainant has failed to prove
the availability of funds out of which Rs.2 lacs allegedly has been advanced
by him to the accused. Moreover, it is also reflected that on 13.01.2009, the
cheque Ex.P/1 has been allegedly given by the accused and on the same day,
it has been submitted before the bank for its encashment. If Rs.2 lacs
remained deposited in the bank accounts of the accused, he would not issue
any cheque of Rs.2 lacs rather he could withdraw the amount from his bank
accounts. It is also observed by the learned lower appellate Court that the
cheque Ex.P/1 was certainly given by the accused with certain conditions,
viz. with instruction to submit the cheque for payment after some time or
month, such cheque was given undated and without filling necessary
particulars or the cheque has been got executed by the accused by exerting
pressure upon him. Though in paragraph-14, the learned lower appellate
Court has found proved that the cheque Ex.P/1 has been signed by the
accused.
11. As regards, the essential ingredients required to establish the
commission of an offence under Section 138 of N.I. Act, the Hon'ble
Supreme Court, in the case of Gimpex (P) Ltd. v. Manoj Goel: (2022) 11
SCC 705, has lucidly enumerated the same in the following terms:
"26. The ingredients of the offence under Section 138 are:
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26.1 The drawing of a cheuqe by person on an account maintained by
him with the banker for the payment of any amount of money to
another from that account;
26.2. The cheque being drawn for the discharge in whole or in part of
any debt or other liability;
26.3. Presentation of the cheque to the bank;
26.4. 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 arranged
to be paid from that account;
26.5. 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
26.6. 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."
12. It is not in dispute that to constitute an offence under Section 138 of
the NI Act, the cheque in question must have been issued in discharge of a
legally enforceable debt or liability. However, Section 139 of the NI Act
provides that once the drawer admits his signature on the cheque, a statutory
presumption arises that the cheque was issued for the discharge, in whole or
in part, of a debt or other liability. Section 118 of the NI Act further lays
down a presumption that every negotiable instrument, when held by a holder
in due course, has been made or drawn for consideration. In addition,
Section 20 of the NI Act stipulates that when a person signs and delivers a
stamped but otherwise incomplete negotiable instrument, he thereby
authorizes the holder to complete it for any amount not exceeding the value
covered by the stamp. The scope and effect of these presumptions have been
comprehensively explained by the Hon‟ble Supreme Court in Bir Singh v.
Mukesh Kumar: (2019) 4 SCC 197, wherein it was observed:
"33. A meaningful reading of the provisions of the Negotiable
Instruments Act including, in particular, Sections 20, 87 and 139,
makes it amply clear that a person who signs a cheque and makes it
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over to the payee remains liable unless he adduces evidence to rebut
the presumption that the cheque had been issued for payment of a debt
or in discharge of a liability. It is immaterial that the cheque may have
been filled in by any person other than the drawer, if the cheque is duly
signed by the drawer. If the cheque is otherwise valid, the penal
provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a payee,
towards some payment, the payee may fill up the amount and other
particulars. This in itself would not invalidate the cheque. The onus
would still be on the accused to prove that the cheque was not in
discharge of a debt or liability by adducing evidence."
13. In this case, it is categorically held by both the Courts below that the
cheque Ex.P/1 is established to be signed by the accused. As far as the
reasoning given by the learned lower appellate Court in paragraph-12 is
concerned, it is flimsy and baseless, which is given on the assumption that
the cheque Ex.P/1 has been issued by the accused on the premise that he has
sufficient funds in his bank accounts and whatever other reasoning has been
given by the learned lower appellate Court in paragraph-12 has not been the
plea taken by the accused in this case. It is reflected from the paragraph-1 of
the complaint as well as the affidavit of chief-examination of the
complainant that Rs.2 lacs as advance has been given earlier before the
cheque Ex.P/1 has been given by the accused to the complainant. Though it
has not been mentioned that how much period has been elapsed for such
advance since the accused has given the cheque Ex.P/1, but in the attending
facts and circumstances of the case that does not belie the case of
complainant on the sole ground. It is reflected from the evidence that on
13.01.2009, the cheque Ex.P/1 has been issued by the accused with his
signature and on the same day, it has been submitted before the bank
concerned for its encashment. The submission of the cheque Ex.P/1 on the
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same day when the cheque Ex.P/1 has been issued is not found to be an
unnatural behavior of the complainant. As a matter of course and is of a
common experience that many a times cheque has been submitted on the
bank on the same day when it was issued. Therefore, the reasoning given by
the learned lower appellate Court in paragraph-12 of the impugned judgment
is not acceptable.
14. The defence of the accused which has been taken in statement under
Section 313 of Cr.P.C. that his cheque book has been misplaced and his
Advocate, namely, Shri Anil Yadav, has informed him that his cheque book
is available with Shailendra, complainant herein. Neither such defence has
been taken while cross-examining the complainant nor any defence witness
has been adduced by the accused to substantiate the aforesaid defence. On
the contrary, the defence taken by the accused in cross-examination of the
complainant that Dinesh, who is a friend of accused, has given the aforesaid
amount as advance to the accused and he has given a cheque as a security to
him.
15. The accused by enhancing the amount on that cheque filed this
complaint while the actual amount was Rs.50,000/-. Although, in this regard
whatever suggestions have been put before the complainant in cross-
examination have been denied by him. He has also denied the suggestions
given by the accused that the cheque has not been executed by the accused
and is not in writing of the accused and that he has in different writing got
the particulars entered in the cheque with the help of some other person. He
also denied the suggestions that he has by preparing the cheque of excessive
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amount has filed this complaint against the accused.
16. The complainant has supported its case in its entirety in his chief-
examination and stated categorically in paragraph-5 of his chief-examination
that the accused himself has executed the cheque Ex.P/1 and signed it in his
presence. He also stated in paragraph-6 that the accused has received the
notice Ex.P/5 and acknowledgement Ex.P/6 bears the signature of the
accused. It is pertinent to mention here that the accused has not challenged
his address mentioned on the notice Ex.P/5 and UPC receipt Ex.P/4. The
Ex.P/6 acknowledgement of Department of Post India also reflects that the
same address has been mentioned on it and it bears the signature of the
accused at 'A to A' is exhibited by the complainant in his statement. This fact
is unrebutted in the cross-examination of the complainant, therefore, it is
established that the notice Ex.P/5 has also been duly served on the accused
but he has not given any reply to the notice.
17. The complainant has stated categorically in paragraph-8 of his cross-
examination that he has given advance of Rs.2 lacs out of his income
generated from agricultural activities and sale of furniture. Though he is
submitting the income tax return but he has not entered any entry in respect
of such advance as it has not been given from his business capital. The
explanation of the complainant in this respect is also not found to be
unnatural or flimsy rather he has satisfactorily explained the availability of
funds with him. The observation of the learned lower appellate Court in
paragraph-13 of the impugned judgment is also not acceptable.
18. It is established having regard to the evidence adduced on behalf of
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the complainant and in absence of any rebuttal evidence on behalf of the
accused that the Ex.P/1 bears the signature of the accused and it has been
duly executed by the accused. The notice Ex.P/5 has also been duly served
on him but he has not given reply to it.
19. Recently in the case of Sanjabij Tari Vs. Kishore S. Borcar & another,
in Criminal Appeal No.1755 of 2010 , the Hon'ble Apex Court in para 15 to
18 has held as under :
"15. In the present case, the cheque in question has admittedly been
signed by the Respondent No.1-Accused . This Court is of the view
that once the execution of the cheque is admitted, the presumption
under Section 118 of the NI Act that the cheque in question was drawn
for consideration and the presumption under Section 139 of the NI Act
that the holder of the cheque received the said cheque in discharge of a
legally enforceable debt or liability arises against the accused. It is
pertinent to mention that observations to the contrary by a two Judges
Bench in Krishna Janardhan Bhat vs. Dattatraya G. Hegde, (2008) 4
SCC 54 have been set aside by a three Judges Bench in Rangappa
(supra).
16. This Court is further of the view that by creating this presumption,
the law reinforces the reliability of cheques as a mode of payment in
commercial transactions.
17. Needless to mention that the presumption contemplated under
Section 139 of the NI Act, is a rebuttable presumption. However, the
initial onus of proving that the cheque is not in discharge of any debt or
other liability is on the accused/drawer of the cheque [See: Bir Singh
vs. Mukesh Kumar, (2019) 4 SCC 197 ].
18. The judgment of this Court in APS Forex Services Private Limited
(supra) relied upon by learned counsel for the Respondent No.1-
Accused only says that presumption under Section 139 of the NI Act is
rebuttable and when the same is rebutted, the onus would shift back to
the complainant to prove his financial capacity, more particularly,
when it is a case of giving loan by cash. This judgment nowhere states,
as was sought to be contended by learned counsel for the Respondent
No.1-Accused, that in cases of dishonour of cheques, in lieu of cash
loans, the presumption under Section 139 of the NI Act does not arise.
20. In the case of Satish Kumar Vs. State (Govt. NCT Delhi) and another,
2025 SCC OnLine Del 8429, in para 15 the Delhi High Court has observed
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that once the petitioner admitted his signatures on the cheques in question,
the statutory presumptions under Sections 118 and 139 of the NI Act stood
attracted against him. It was, therefore, incumbent upon the petitioner to
rebut these presumptions by leading cogent and credible evidence to show
that the cheques were not issued in discharge of any legally enforceable debt
or liability.
21. The Hon'ble Apex Court in Sanjabij Tari (supra) in para 22 and 23 has
held as infra:
"22. It is pertinent to mention that in the present case, the Respondent
No.1- Accused has filed no documents and/or examined any
independent witness or led any evidence with regard to the financial
incapacity of the AppellantComplainant to advance the loans in
question. For instance, this Court in Rajaram S/o Sriramulu Naidu
(Since Deceased) Through LRs. vs. Maruthachalam (Since Deceased)
Through LRs., (2023) 16 SCC 125 has held that presumptions under
Sections 118 and 139 of the NI Act can be rebutted by the accused
examining the Income Tax Officer and bank officials of the
complainant/drawee.
WHEN THE EVIDENCE OF PW-1 IS READ IN ITS ENTIRETY, IT
CANNOT BE SAID THAT THE APPELLANT-COMPLAINANT
HAD NO WHEREWITHAL TO ADVANCE LOAN
23. Most certainly, the accused can rely upon the evidence adduced by
the complainant to rebut the presumption with regard to the existence
of a legally enforceable debt or liability, yet in the present case, when
the evidence of Appellant-Complainant (PW-1) is read in its entirety,
like it should be, it cannot be said that the Appellant-Complainant had
no wherewithal to advance any loan to the Respondent No.1-Accused."
22. Keeping in view the law laid down in the aforesaid cases, the
complainant has established the fact that the cheque in question (Ex.P/1) was
given by the accused for the discharge of legally enforceable debt or liability
and in this respect the presumption arises under Section 118 and 139 of NI
Act which could not be rebutted by the accused.
23. In the case of Sanjabij Tari (supra), the Hon'ble Apex Court in para 29,
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30 & 31 has held that when the accused has failed to reply to the statutory
notice under Section 138 of the NI Act that leads to an inference that there is
merit in the complainant's version, the accused has the initial burden to set
up the defence in his reply to the demand notice that the complainant did not
have the financial capacity to advance the loan. When a statutory notice is
not replied, it has to be presumed that the cheque was issued towards the
discharge of liability. Paragraphs 29, 30 & 31 of the said decision read as
under :-
"29. Furthermore, the fact that the accused has failed to reply to the
statutory notice under Section 138 of the NI Act leads to an inference
that there is merit in the AppellantComplainant's version. This Court in
Tedhi Singh vs. Narayan Dass Mahant, (2022) 6 SCC 735 has held that
the accused has the initial burden to set up the defence in his reply to
the demand notice that the complainant did not have the financial
capacity to advance the loan. The relevant portion of the said judgment
is reproduced hereinbelow:-
"10. ... The proceedings under Section 138
of the NI Act is not a civil suit. At the time,
when the complainant gives his evidence,
unless a case is set up in the reply notice to
the statutory notice sent, that the
complainant did not have the wherewithal, it
cannot be expected of the complainant to
initially lead evidence to show that he had
the financial capacity. To that extent, the
courts in our view were right in holding on
those lines. However, the accused has the
right to demonstrate that the complainant in
a particular case did not have the capacity
and therefore, the case of the accused is
acceptable which he can do by producing
independent materials, namely, by
examining his witnesses and producing
documents. It is also open to him to
establish the very same aspect by pointing to
the materials produced by the complainant
himself. He can further, more importantly,
achieve this result through the cross-
examination of the witnesses of the
complainant. Ultimately, it becomes the
duty of the courts to consider carefully and
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appreciate the totality of the evidence and
then come to a conclusion whether in the
given case, the accused has shown that the
case of the complainant is in peril for the
reason that the accused has established a
probable defence."
(emphasis supplied)
30. This Court in MMTC Ltd. and Another vs. Medchl Chemicals &
Pharma (P) Ltd. and Another, (2002) 1 SCC 234 has specifically held
that when a statutory notice is not replied, it has to be presumed that the
cheque was issued towards the discharge of liability.
31. Also, after receipt of the legal notice, wherein the Appellant-
Complainant alleged that the Respondent No.1- Accused's cheque had
bounced, no complaint or legal proceeding was initiated by the
Respondent No.1-Accused alleging that the cheque was not to be
encashed. Consequently, the defence of financial incapacity of
Appellant-Complainant advanced by the Respondent No.1- Accused is
an afterthought."
24. The law laid down in the aforesaid cases substantiate the case of the
complainant in this case and it is when the case of complainant is found to be
fully proved against the accused.
25. Resultantly, this appeal is allowed. The impugned judgment of
acquittal passed by the lower appellate court is hereby set aside and the
impugned judgment of conviction and order of sentence passed by the Trial
Court is hereby restored and upheld. The learned Trial Court is directed to
take the accused/respondent in custody and send him to jail as per the order
of sentence passed by it.
26. Let a copy of this order along with the record be sent to the trial Court
for necessary compliance.
(RAJENDRA KUMAR VANI)
JUDGE
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mrs. mishra
ac/-
