Amit Singh vs Vishal Jain

The present acquittal appeal has been filed by the complainant/appellant herein against the judgment dated 13.07.2017 passed in Criminal Complaint Case No. 100/2012 by the learned Judicial Magistrate First Class, Raipur (C.G.), whereby the learned trial Court acquitted the accused/respondent herein from the charge punishable under Section 138 of the Negotiable Instrument Act (for short 'the N.I. Act').

Brief facts of the case are that accused/respondent and appellant/complainant were having cordial relationship and due to this cordial relationship, accused/respondent demanded Rs.25,00,000/- on credit. Firstly, the appellant/complainant refused to give, however on the assurance of quick repayment and repeated request of accused/respondent, he gave him Rs.25,00,000/- in cash. After passage of some months, upon demand made by complainant/appellant to return the money, the accused/respondent gave him a cheque bearing No.150360 amount to Rs.25,00,000/- dated 08.10.2011 drawn on Commercial Co-operative Bank Limited, Branch Raipur. The complainant/appellant presented the said cheque given by the accused/respondent in discharge of his obligation to his Federal Bank Limited, Raipur for withdrawal, who came to know through the memorandum issued by the bank on 10.10.2021 that the above cheque was dishonored due to ‘Stop Payment’ by the accused/respondent. Upon informing the accused/respondent through telephone and demanding the amount by the complainant/appellant, the accused/respondent neither paid the aforesaid amount nor gave satisfactory reply in this regard. Thereafter, on 22.10.2011, the complainant/appellant served a legal notice with acknowledgment through his advocate to accused/respondent but the same was returned to his advocate on account of refused to accept and the accused/respondent did not pay the amount to the complainant/appellant which is an offence punishable under Section 138 of the N.I. Act. Since, the amount was not paid, the complaint case under Section 138 of N.I. Act was filed.

The trial Court took cognizance of the complaint and issued notice to the accused/respondent herein who then appeared in the matter. The trial was conducted and the learned Judicial Magistrate First Class, after appreciating oral and documentary evidence, acquitted the accused/respondent herein on this ground that it was not proved that the accused/respondent had obtained a loan of Rs.25 Lakh from the complainant/appellant and in discharge of the said loan liability, he had given the disputed check of Rs 25 Lakh to the complainant and dismissed the complaint case for want of authenticity, which sought to be challenged by filing the instant appeal.

Learned counsel for the appellant submits that the learned trial Court did not appreciated the fact that the cheque in question was issued by the accused/respondent which got dishonored due to ‘stop payment’. The signature on the cheque was not denied and the same was proved by the opinion (D-1) of the expert examined by the defence. It was the defence of the accused/respondent that owing to some circumstances, he had to advice his bank to stop payment vide Ex.D-3(C) upon which advice was noted by the bank vide Ex.D/6 and was dishonoured by the bank. Thus, sufficient material was available on record to act upon the presumption under Section 118 and 139 of the N.I. Act. Learned counsel further submits that the entire defence stands only on the proof of actually handing over of cheque to Anil Baradia and its loss with bag by Anil Baradia. The defence relied on the FIR and Affidavit by Anil Baradia to prove said fact but could not successfully bring on record and exhibits those documents but the learned trial Court did not appreciate oral documentary evidence properly and acquitted the accused/respondent by giving wrong finding and it is well settled principle of law that in N.I. Act complainant has to only prove this fact that the cheque was given by the accused. Even if the blank cheque was given by the accused/respondent then presumption is in favour of the complainant under Section 118 and 139 of N.I. Act. The complainant is not expected to prove his case beyond reasonable doubt but the learned trial Court extended benefit of doubt in favour of accused/respondent. So the finding of learned trial Court is perverse and illegal and liable to be set aside.

Heard learned counsel for the appellant and perused the material available on record.

Before the learned trial Court, the complainant/appellant herein examined himself and exhibited documents (Ex.P/1 to Ex.P/5). The accused/respondent herein has also examined one handwriting expert Ku. Sunanda Dhange (DW/1) and three other witnesses namely Gangeshwar Lal Sahu (DW/2), Dwarika Prasad Verma (DW/3) and Lalit Begani (DW/4).

In the instant case, defence of accused/respondent is that he had given the cheque in question to one Anil Baradia who lost/misplaced the cheque and thereafter he lodged the FIR. Ku. Sunanda Dhange (DW/1) has stated that hand writing of amount and signature are different and one Gangeshwar Lal Sahu (DW/2) stated that the accused/respondent had made a written complaint regarding theft of cheque in his police station and he had submitted his report (Ex.D/2) on the said complaint.

Complainant Amit Singh (CW/1) has clearly stated that accused/respondent had given cheque (Ex.P/1) to him, which was dishonored by bank and he sent a notice (Ex.P/5) to accused/respondent, which was returned on account of ‘refused to take’.

The learned trial court finds that in Cheque Return Memo Ex.P/2, the seal of bank was missing but it is clear from cheque (Ex.P/1) that seal of Federal Bank Ltd, Raipur dated 10.10.2011 was there on overleaf and as per Cheque Return Memo (Ex.P/2), cheque was dishonored due to ‘Stop Payment’ by the accused/respondent and it is clear from Ex.P/4 and Ex.P/5 which is notice, which was sent to accused/respondent within time and respondent admitted his signature and amount & also admitted this fact that he told his bank for ‘Stop Payment’.

As regards the different hand writing on cheque, the Hon’ble Supreme Court in the matter of P.K. Manmadhan Kartha Vs. Sanjeev Raj and another reported in (2002) 7 SCC 150 has held that, "the cheque was issued prior to, or subsequent to, the closure of the account and difference of hand writings and ink on the cheque did not rebut the statutory presumptions under section 139 and 118 of NI Act".

In the instant case also the respondent/accused admitted his account and signature but the learned trial Court ignoring the aforesaid factum recorded the finding that complaint is suspicious and acquitted the respondent/accused of the charges levelled against him. The finding of acquittal recorded by the learned trial Court, in the opinion of this Court, is not in accordance with the provision of N.I. Act and guidelines of Hon’ble Supreme Court in the matter of P.K. Manmadhan (supra).

In the result, the appeal is allowed. The impugned judgment of acquittal dated 13.07.2017 passed by the learned trial Court is hereby set aside. The accused/respondent is convicted under Section 138 of the N.I. Act and sentenced to pay a fine of Rs.25,00,000/-, in default thereof he shall suffer R.I. for two years. The fine amount so deposited by the respondent/accused shall be payable to the complainant/appellant as compensation.