Roshan Lal vs Shyama Nand

Rakesh Kainthla, J

The present appeal is directed against the judgment dated 20.11.2013 passed by the learned Additional Chief Judicial Magistrate, Theog, District Shimla (learned Trial Court) vide which the respondent (accused before learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the accused had borrowed ₹3,25,000/- from the complainant. He issued a cheque of ₹3,25,000/- to discharge his liability. The complainant presented the cheque to his bank, but it was dishonoured with the remarks 'insufficient funds'. The complainant issued a legal notice on 29.10.2010 to the accused asking him to pay the amount within 15 days of the receipt of the notice. The accused refused to accept the notice. He also did not pay the money to the complainant. Hence, the complaint was filed before the Court for taking action against the accused as per the law.

Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried.

The complainant examined himself (CW1), Kimti Lal (CW2) and Banu Lal (CW3).

The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C.), admitted that the cheque was dishonoured with an endorsement 'insufficient funds'. He denied the rest of the complainant's case. He stated that he had formed a partnership with the complainant and Dhian Singh. He had kept the cheque books and his documents in one briefcase. The complainant took the briefcase and misused the cheques. He examined himself (DW1), Mast Ram (DW2), Bir Singh (DW3), Dhian Singh (DW4) and Constable Sansar Chand (DW5).

The learned Trial Court held that the defence taken by the accused that he had kept his briefcase containing signed cheques and documents in the house of Veer Singh, from where the briefcase was stolen, was highly probable. The accused had also reported the matter to the police, and an entry in the police station was recorded to this effect. The complainant's statement was highly contradictory, and his testimony that he had advanced the money to the accused was not reliable. The partnership between the complainant-accused and Dhian Singh was proved by the defence evidence. Therefore, the learned Trial Court acquitted the accused.

Being aggrieved by the judgment passed by the learned Trial Court, the complainant has filed the present appeal asserting that the learned Trial Court failed to consider the presumption attached to the cheque. The complainant is not required to prove the consideration because there is a presumption that the cheque was issued for consideration to discharge a debt/liability. Learned Trial Court erred in holding that the complainant should have led the evidence of the payment of the consideration. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

I have heard Mr Rishabh Sharma, learned vice counsel representing the appellant/complainant and Mr Y.P. Sood, learned counsel for the respondent/accused.

Mr Rishabh Sharma, learned vice counsel representing the appellant/complainant, submitted that the learned Trial Court erred in acquitting the accused. The accused had not disputed his signature on the cheque, and the presumption under Section 118 (a) and 139 of the NI Act would be attracted to the present case. Learned Trial Court held that the complainant had failed to prove the payment of consideration, but that is a matter of presumption and not required to be proved. Learned Trial Court erred in insisting upon the proof of the payment of the consideration to the accused. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

Mr Y.P. Sood, learned counsel for the respondent/accused, submitted that the defence witnesses proved that the accused, complainant and Dhian Singh had a partnership and the partners had kept their signed cheques in the briefcase. The briefcase containing the signed cheque of the accused was misplaced, and the complainant admitted the possession of the cheque book with him. Learned Trial Court had taken a reasonable view while acquitting the accused, and this Court should not interfere with the reasonable view of the learned Trial Court while deciding an appeal against acquittal. Hence, he prayed that the present appeal be dismissed.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon'ble Supreme Court in Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433: 2025 SCC OnLine SC 176 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and no reasonable person could have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed at page 438:

"24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."

This position was reiterated in State of M.P. v. Ramveer Singh, 2025 SCC OnLine SC 1743, wherein it was observed:

"21. We may note that the present appeal is one against acquittal. Law is well-settled by a plethora of judgments of this Court that, in an appeal against acquittal, unless the finding of acquittal is perverse on the face of the record and the only possible view based on the evidence is consistent with the guilt of the accused, only in such an event, should the appellate Court interfere with a judgment of acquittal. Where two views are possible, i.e., one consistent with the acquittal and the other holding the accused guilty, the appellate Court should refuse to interfere with the judgment of acquittal. Reference in this regard may be made to the judgments of this Court in the cases of Babu Sahebagouda Rudragoudarv. State of Karnataka (2024) 8 SCC 149; H.D. Sundara v. State of Karnataka (2023) 9 SCC 581, and Rajesh Prasad v. State of Bihar (2022) 3 SCC 471."

The present appeal has to be decided as per the parameters laid down by the Hon'ble Supreme Court.

The complainant Roshan Lal (CW1) denied in his cross-examination that he had a partnership with the accused and Dhian Singh, which continued till 30.09.2009. He denied that the office of the partnership was located in the house of Veer Singh. He denied that the accused had kept a briefcase containing his signed cheque book and other articles in the office. He denied that he had taken the briefcase and told Mast Ram that the briefcase would be returned after the accounts were settled. This part of the complainant's statement was falsified by Dhian Singh (DW4), who stated that he, the accused and the complainant had taken the contracts in partnership. He used to reside in the house of Veer Singh. All the people had kept their articles in the house. Accused Shyama Nand had kept a briefcase containing a blank signed cheque book and other documents. The cheque book was signed and was left blank because the money was to be paid to various growers. The cheque would be handed over to the grower after filling in the amount. The complainant had taken away the briefcase of the accused. He stated in his cross-examination that he is an apple contractor. He and the accused had taken the contract together from 2006 to 2009. He had taken the orchard of Veer Singh on contract, in which they had sustained a loss. He had not seen the complainant taking away the briefcase. He admitted that the accused had made a complaint regarding the loss after the receipt of the summons from the Court.

The statement of Dhian Singh is corroborated by Veer Singh (DW3), who stated that he had handed over his orchard to Roshan Lal, Shyam Nand, and Dhian Singh. He had the signed cheques of the partners, and he had asked them to take away those cheques, but they had not taken the cheques. The complainant had removed the briefcase of the accused, and the accused had reported the matter to the police. He stated in his cross-examination that payment was made to him by Dhian Singh. All three people were present during the apple season. They had also taken a room from him without any rent.

Mast Ram (DW2) stated that the accused had sent him to the house of the complainant. He, Keshav, Sohan Lal and Naresh went to the complainant's house. They had joined Rakesh Kumar on the way. The complainant stated that he would return the briefcase, cheque and the pension paper after the settlement of the account. He narrated this fact to the accused. He stated in his cross-examination that he did not remember the date. There were many people in the vicinity, but he could not tell the names of the owners of those houses.

These witnesses have consistently stated that the accused, complainant and Dhian Singh had a partnership. There is nothing in their cross-examination to show that they were making false statements. Their testimonies make the defence version highly probable that the complainant accused and Dhian Singh were running a partnership, and they had their personal belongings in the office. The denial of these facts by the complainant shows that he is not telling the complete truth before the Court.

The complainant admitted in his cross-examination that police had recorded his statement and he had told the police that ₹50,000/- was taken from Sumesh Thakur, ₹2 lakhs were taken from Mohan Singh Thakur and ₹75,000/- was taken from Jeet Ram. This is contrary to his statement in the Court, wherein he stated that he had taken ₹1,50,000/- from his home and ₹ 2lakh from Mohan Singh, Liquor Contractor. He clarified that the statements made by him before the Court and the police were both correct, which is not possible because the source of money in the two statements is quite different. Therefore, the learned Trial Court was justified in doubting the complainant's testimony and insisting upon the proof of the payment. It was laid down by the Hon'ble Supreme Court in Dattatraya v. Sharanappa, (2024) 8 SCC 573: (2024) 3 SCC (Cri) 776: 2024 SCC OnLine SC 1899 that when the complainant was unable to put forth the details of the loan and made contradictory statements, the presumption attached to the cheque will not help him. It was observed:

Admittedly, the appellant was able to establish that the signature on the cheque in question was of the respondent and in regard to the decision of this Court in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 : (2019) 2 SCC (Civ) 309 : (2019) 2 SCC (Cri) 40, a presumption is to ideally arise. However, in the above-referred context of the factual matrix, the inability of the appellant to put forth the details of the loan advanced, and his contradictory statements, the ratio therein would not impact the present case to the effect of giving rise to the statutory presumption under Section 139 of the NI Act, 1881. The respondent has been able to shift the weight of the scales of justice in his favour through the preponderance of probabilities.

The trial court had rightly observed that the appellant was not able to plead even a valid existence of a legally recoverable debt, as the very issuance of a cheque is dubious based on the fallacies and contradictions in the evidence adduced by the parties. Furthermore, the fact that the respondent had inscribed his signature on the agreement drawn on white paper and not on stamp paper, as presented by the appellant, creates another set of doubts in the case. Since the accused has been able to cast a shadow of doubt on the case presented by the appellant, he has therefore successfully rebutted the presumption stipulated by Section 139 of the NI Act, 1881.

Thus, the learned Trial Court had taken a reasonable view that the statement of the complainant was not satisfactory and the defence version that the complainant had taken a briefcase containing the signed cheques and other documents of the accused was probable. This was a reasonable view that could have been taken based on the evidence led before the learned Trial Court, and this Court will not interfere with the reasonable view of the learned Trial Court, even if another view is possible.

No other point was urged.

In view of the above, the present appeal fails, and it is dismissed, and so are the pending miscellaneous applications, if any.

In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the respondent/accused is directed to furnish bail bond in the sum of ₹25,000/- with one surety each in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondent/accused on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.

A copy of the judgment, along with records of the learned Trial Court, be sent back forthwith.