Devendra Singh Chouhan vs M/S D. S. H. Construction Company

This Acquittal Appeal is directed against the judgment dated 20.11.2012 passed by the 5th Additional Sessions Judge, Bilaspur in Criminal Appeal No.16/2012 whereby, the accused/Respondent was acquitted of the charge under Section 138 of the Negotiable Instruments Act (for short ‘the NI Act’).

Briefly stated, the facts of the case are that the accused/Respondent is a working partner of M/s D.S.H Construction Company and the present Appellant/Complainant was working as Manager therein. The Respondent/Company is engaged in construction of roads nearby Bilaspur City, Chhattisgarh and for the purpose of supplying material like stones, ballasts and murum, they have engaged M/s. Gyan Singh, R/o of Bodri. As the Appellant/Complainant was working as a Manager at local Office at Bilaspur, therefore, on behalf of the Respondent, he was placing orders for supply of road construction materials. The supplier M/s Gyan Singh was not ready to supply material on credit because the Respondent/Company is not Chhattisgarh based, therefore, the Respondent/Company had issued a cheque bearing No.493206 dated 22.12.2008 amounting to Rs.5 lacs in favour of the Appellant/Complainant for making payments of construction materials. When the Appellant/Complainant deposited the said cheque, it was returned by the Bank with an endorsement “due to insufficient funds” vide Ex.C-2 dated 23.12.2008. The Appellant/Complainant thereafter issued a legal notice (Ex.C-3) to the accused/Respondent making demand of the cheque amount and the said notice was returned by the Postal Department with an endorsement that Respondent was not found (Ex.C-5) therein. Thereafter, the Appellant/Complainant had again given a reminder notice but even then, the accused/Respondent had not paid the amount of the cheque and had sent reply stating that the said cheque was never issued by him in favour of the Appellant/Complainant and the Appellant/Complainant had taken the said cheque from his custody and made false signatures and filed necessary details over the cheque.

In order to prove his case, the Appellant/Complainant has examined himself and Gyan Singh (DW-2), the supplier of the road construction material as also Srikant Sonkar (DW-3), Customer Service Manager of ICICI Bank Limited, Bilaspur Branch. In the statement recorded under Section 313 Cr.P.C, the accused/Respondent has pleaded that he has been falsely implicated and stated that the cheque which was kept in the Office as security was used by the Appellant/Complainant and he has examined Sridhar Shankar Hawale (DW-1) and proved document Ex.D-1 which shows that on the date of dishonour of the cheque i.e. 23.12.2008, sufficient balance to the tune of Rs.26,35,937.63 was lying in his account.

After evaluation of the evidence adduced, learned JMFC, Bilaspur has convicted the accused/Respondent under Section 138 of the NI Act in Criminal Case No.779/2010 vide judgment dated 7.12.2011 and awarded a sentence of RI for 1 year and fine of Rs.5 lacs with usual default stipulations. The accused/Respondent has preferred an Appeal, which was allowed by the impugned judgment. Hence, this Appeal by the Appellant/Complainant.

Learned Counsel for the Appellant/Complainant submits that the appellate Court has not appreciated the evidence in its proper perspective as the cheque was issued for payment of liability of the supply of the road construction materials made to the accused/Respondent and further, there is presumption in favour of the account holder under Section 138 of the NI Act and the Bank has duly intimated the fact of dishonouring of the cheque for insufficient funds vide Ex.C-2, therefore, the offence is squarely made out and prays to allow the Appeal while convicting the accused/Respondent.

On the other hand, learned Counsel for the accused/Respondent submits that the offence under Section 138 of NI Act attracts only in case of insufficient funds. He placed reliance on Ms. Narayana Menon alias Mani vs. State of Kerala & Anr. reported in 2006 Cri.L.J 4607 and submits that as no offence has been attracted. He further submits that as Customer Service Manager-Srikant Sonkar (DW-3) categorically admits the fact that on 24.12.2008, there was sufficient fund in the account of the accused/Respondent to the tune of Rs.26,35,967.63 and for which, the Bank has also issued a letter (Ex.D-1) which was duly proved by the accused/Respondent and further, as there is no clear evidence as to how much quantity of the road construction material was supplied and further as it has also been admitted that the cheque was given for security purpose, therefore, the appellate Court has rightly acquitted the accused/Respondent of the aforesaid charge and prays to dismiss the Appeal.

Heard learned Counsel for the parties, perused the record as also the documents carefully.

Admittedly, in the instant case, an intimation by the Bank namely ICICI Bank Limited was issued vide Ex.C-2 but Srikant Sonkar (DW-3) has categorically stated at para-2 of his cross-examination that the Bank never issues any such memo without having its seal and there was no such seal on Ex.C-2. This witness further admits the fact that the Bank has issued a letter (Ex.D-1) in favour of the accused/Respondent and also specified that on 23.12.2008, the accused/Respondent was having a credit balance of Rs.26,35,937.63 in his account bearing No.624205005656 and from the said credit, cheque (Ex.C-1) dated 22.12.2008 was issued for which, the Appellant/Complainant has preferred a complaint case. As the Bank authority has categorically admitted the fact that on the date when the cheque was presented before the Bank, there was sufficient balance in the credit of the accused/Respondent, therefore, necessary ingredients under Section 138 of NI Act are missing.

Further, the Appellant/Complainant categorically admits in his cross-examination that he has not filed any receipt of the stones and murum which has been supplied in favour of the accused/Respondent and he also admits that no agreement was executed. He further admits that there is nothing on record to show as to how much quantity of murum and stones was supplied on the spot. He categorically admits that the cheque was issued for security purpose. Though notice [Ex-C-6(1)] shows that Rs.4,50,000/- was paid to M/s Gyan Singh (DW-2) but he (Gyan Singh), in his deposition, has categorically stated that still balance of payment of Rs.1 lac is lying towards the Appellant/Complainant, which goes to show that the Appellant/Complainant has also not stated anything clear with regard to the transaction, therefore, this Court is of the opinion that the view taken by the Court below is a possible view as the Appellant/Complainant has failed to establish his case beyond all reasonable doubts.

In the matter of Jafarudheen and Others vs. State of Kerala reported in (2022) 8 SCC 440, while dealing with the scope of Appeal against acquittal, the following was observed at para-25, which reads as under:-

“25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court’s view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

In view of the aforesaid discussion, this Court is of the considered opinion that the appellate Court has rightly acquitted the accused/Respondent of the aforesaid charge and as such, there is no infirmity or perversity in the findings recorded by the said Court, therefore, no interference is required. Accordingly, the Appeal, being bereft of any merits, is hereby dismissed at motion stage.