Shailendra Gupta vs Arvind Kuri
2021 Latest Caselaw 16635 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Leave To Appeal No. 89/2018

Shailendra Gupta s/o Chothmal Gupta, By Caste Gupta, R/o 17/472, Chopasni Housing Board, Jodhpur.

----Appellant Versus Arvind Kuri s/o Late Shri Suresh Ji Kuri, By Caste Jat, R/o 13- Krishna Nagar, Basni, Jodhpur. Director Shri Balaji Build Creation Pvt. Ltd. 6-7, Mudit Mension, Shashtri Nagar, Police Station Ke Pas, Pal Road, Jodhpur.

                                                                ----Respondent


For Appellant(s)         :     Mr. Ashok Kumar Jain
For Respondent(s)        :     Mr. S.K. Bishnoi, PP



          HON'BLE MR. JUSTICE RAMESHWAR VYAS

                                Judgment

09/11/2021

The instant leave to appeal has been filed under

Section 378 (1)(b)(3) Cr.P.C. against the order dated 15.9.2017

whereby the Court of Special Metropolitan Magistrate (NI Act

Cases) No.6, Jodhpur Metropolitan in Criminal Case No. 241/16

(2234/17) titled as Shailendra Gupta vs. Arvind Kuri acquitted the

respondent.

As per complainant/appellant's case, in pursuance of an

advertisement issued by Shri Balaji Build Creations Pvt. Ltd., he

contacted respondent Arvind Kuri for purchasing a piece of land.

An agreement was executed between them, wherein it was agreed

by the respondent to re-purchase the plot for Rs.3,60,000/-. In

lieu of which, Rs. 500/- was paid by the accused to the

complainant and for rest of money i.e. Rs.3,59,500/-, a cheque

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bearing No.638490 dated 4.5.2016 was handed over to the

complainant. The complainant when presented the cheque in the

Bank by the complainant for encashment, it was dishonored with

the remark 'insufficient funds in the account'. Thereafter, the

complainant gave registered notice to the accused respondent,

which was served upon him. However, he did not pay the amount

within the stipulated period of fifteen days. Thereafter, complaint

under Section 138 of Negotiable Instruments Act (herein

afterwards referred to as 'N.I. Act') was filed by the complainant

against the accused respondent. Learned trial court after due trial

and hearing both the parties delivered the impugned judgment,

whereby, accused respondent was acquitted from the offence

under Section 138 of N.I. Act.

Being aggrieved by the impugned order of acquittal, the

complainant filed the present leave to appeal. Thereafter, notice

issued to the accused respondent was served upon him.

Heard learned counsel for the parties and perused the

record of trial court as well as the impugned judgment and

judgment of the Hon'ble Apex Court in the case of Sripati Singh

(since deceased) through His Son Gaurav Singh vs. The

State of Jharkhand & Anr : 2021 Latest Caselaw 531 SC

cited by the learned counsel for the appellant.

During the arguments, learned counsel for the

appellant submitted that the trial court committed gross error in

acquitting the accused respondent. It is not in dispute that the

cheque was given by the accused respondent after signing it, the

same was dishonored and after complying the requirement of

Section 138 of the N.I. Act, the complainant filed the complaint.

Learned counsel further submitted that the trial court committed

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error in arriving at the conclusion that the cheque was not for

consideration. As per the provisions of Section 139 of the N.I. Act,

it shall be presumed that the holder of cheque received the

cheque for discharge in whole or in part of any debt or other

liability.

He further submitted that in the present case, cheque

was drawn by the accused respondent in favour of the

complainant appellant in lieu of purchasing plot for a sum of Rs.

3,60,000/-. Hence, while granting leave to appeal, the impugned

judgment in the appeal is liable to be set aside.

On the other hand, learned counsel for the respondent

submitted that the judgment of trial court is based on sound

reasoning and settled legal principles.

After giving thoughtful consideration to the submissions

made by the learned counsel for the parties and after perusing the

record, it is evident that at the time of drawing the cheque by the

accused respondent in favour of complainant appellant, no liability

existed against the respondent. From the statements of the

complainant and the evidence it emerges that the plot was

purchased by the complainant himself; the possession of the plot

had also been delivered to the complainant, as also admitted by

him in cross-examination. Cross-examination of complainant also

reveals that after purchasing the plot, the registered sale-deed

was also executed in favour of the complainant. As per averments

of the complainant, he purchased the plot for investment purpose

and an agreement was executed between the parties to the effect

that seller would re-purchase the plot after three years and for

that respondent will pay double amount. In support of his

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promise, respondent issued the cheque in favour of the

complainant.

Above facts reveal that the accused gave the cheque in

favour of the complainant to assure him that he will re-purchase

the plot after three years. Assuming that he breached the terms of

the agreement, it cannot be presumed that the cheque in question

was drawn against any liability. The evidence on record rebutted

the presumption under Section 139 of the N.I. Act that the cheque

was given for any debt or any liability.

In the judgment of Sripati Singh (supra) relied by the

learned counsel for the appellant, the Hon'ble Apex Court referred

the judgment of Sampelly Satyanarayana Rao vs. Indian

Renewable Energy Development Agency Ltd., (Criminal

Appeal No.867 of 2016) wherein issue as to what constitutes a

legally enforceable debt or other liability as contained in the

Explanation 2 to Section 138 of N.I. Act was held, as under:-

"We are of the view that the question whether a post- dated cheque is for "discharge of debt or liability" depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise."

In the present case, if the respondent fails to re-

purchase the plot, which he sold to the complainant on the

promise of re-purchase, the appellant may file civil or criminal

proceedings against the accused respondent but not under Section

138 of the N.I. Act. The cheque was given in support of his

assurance to re-purchase the plot which cannot be said to be

given for discharge of any liability. The complainant also did not

give any notice to the respondent to show his readiness to execute

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the sale-deed in favour of the respondent. It is also pertinent to

note that the complainant also failed to produce the so called

agreement by which accused respondent agreed to re-purchase

the plot from the complainant.

In the above circumstances, there is no ground to grant

leave to appeal to the appellant.

Accordingly, leave to appeal being devoid of any merit

is dismissed.

(RAMESHWAR VYAS),J

60-Anil Makwana/-

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