Allowed

Nihal Parwej v. Mohd.Hafiq Ansari @ Ballu Bhai

Chhattisgarh HC13 Sept 2023ACQA/236/2009

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed an appeal challenging an acquittal under Section 138 of the Negotiable Instruments Act. The court held that the trial court erred in finding the cheque blank and that the accused failed to rebut the statutory presumption under Section 139, thus convicting and sentencing the accused.

What did the court decide?

Impugned judgment set aside; respondent held guilty and sentenced to fine of Rs. 45,000/- or one year simple imprisonment in default.

Nihal Parwej Vs Mohd.Hafiq Ansari @ Ballu Bhai — Cheque Dishonour | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment Reserved on 03/08/2023

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Judgment delivered on 13/09/2023

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ACQA No. 236 of 2009

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Nihal Parwej, S/o Mohd. Ibrahim Khan, aged about 40 years, R/o Baij Nath Para, P.S. City Kotwali, Raipur, Tahsil & District Raipur (CG)

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---- Appellant/complainant

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-Versus-

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Mohd. Hafiz Ansari @ Ballu Bhai, S/o Sheikh Jalal, R/o Near Madrasa, Moudhapara, Tahsil & District Raipur (CG)

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---- Respondent/accused

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For Appellant : Mr. Dinesh Yadav, Advocate on behalf of Mr. Shivendu Pandya, Advocate For Respondent : Mr. Ajay Chandra , Advocate.

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Hon'ble Mrs. Justice Rajani Dubey, J C.A.V. JUDGMENT

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1 . Heard on admission.

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2 . The appeal is admitted for hearing.

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3 . With the consent of the parties, the matter is heard finally.

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4 . Challenge in the present appeal is to the judgment dated 3.9.2007 passed by Judicial Magistrate First Class, Raipur in Criminal Case No. 1193/2006 acquitting the respondent/accused of the charge under Section 138 of Negotiable Instruments Act.

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5 . The averments made in the complaint, in brief, are that the appellant/complainant and the respondent/accused are acquainted to each other. The complainant gave a sum of Rs.45,000/- to the respondent/accused for buying a taxi and in discharge of the said liability, the accused gave two cheques of Central Bank of India to

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the complainant i.e. Cheque No.092406 dated 14.7.2003 of Rs.20,000/- and Cheque No.092407 dated 14.7.2003 of Rs.25,000/-. However, the said cheques being presented by the complainant before his bank i.e. Canara Bank, Raipur, for encashment, the same stood dishonoured on 22.7.2003 due to insufficient fund in the account of the accused and intimation to this effect was sent to the accused by the complainant by sending a legal notice dated 26.7.2003 through his advocate, which was received by the accused on 28.7.2003. Even thereafter the respondent did not return the aforesaid amount to the complainant. Therefore, the complainant filed a complaint case under Section 138 of the Negotiable Instruments Act (in short “NI Act”) against the respondent/accused.

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6 . The trial Court considering the evidence of the respective parties by the impugned judgment dated 3.9.2007 acquitted the respondent/accused of the charge.

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7 . Learned counsel for the appellant submits that the impugned judgment passed by the learned trial Court is bad in law and facts. Learned trial Court has committed error in appreciation of the oral and documentary evidence on record. Learned trial Court erred in holding the cheque to be blank. The findings recorded by the learned trial Court are unwarranted and against the presumption available under Section 139 of the NI Act. The defence witness has not supported the defence of the respondent/accused. The findings recorded by the trial Court in paras 10 and 11 of the impugned judgment are highly perverse and incorrect. The defence of the accused is based on afterthought which is liable to be disbelieved. Learned trial Court did not appreciate the fact that in this case the

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burden of proof is on the respondent/accused but he failed to discharge the said burden. The cheques and the account are also not denied by the accused. Hence, the findings recorded by the learned trial Court are liable to be set aside and the respondent be held guilty under Section 138 of the NI Act and sentenced in accordance with law.

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8 . On the other hand, learned counsel for the respondent/accused has supported the impugned judgment and submits that the learned trial Court considering all the relevant aspects of the matter in light of the overall evidence adduced by the parties has rightly acquitted the respondent of the charge under Section 138 of NI Act and as such, no interference is called for in the impugned judgment.

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9 . Heard learned counsel for the parties and perused the impugned judgment and other material available on record.

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10. Before the learned trial Court, the appellant/complainant examined himself in support of his complaint and filed documents Ex.P/1 & P/2 i.e. cheques in question, Ex.P/3 & P/4 i.e. cheque returning reason memos; Ex.P/5 i.e. bank deposit slip; Ex.P/6 i.e. copy of the notice; Ex.P/7 i.e. postal receipt and Ex.P/8 i.e. acknowledgment of the accused. The respondent/accused denied the fact in his statement under Section 313 of CrPC that he gave cheques to the complainant but his defence witness Basant Kumar states in his deposition that the accused gave eight cheques to Sanju Gavai, an employee of Canara Bank, in lieu of Rs.40,000/- taken by the accused from Sanju Gavai. In cross-examination he admitted the fact that he was employee of the complainant. Defence witness No.2 Sanjay Kumar Gavai supported the statement of the complainant and stated that the

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accused did not give him any cheque. He states that the accused had taken some loan from the complainant and gave two blank cheques to the complainant, and at the instance of complainant, he filled the amount in the said cheques. The respondent/accused examined himself as DW-3 and in para 7 of his cross-examination admitted the fact that Ex.P/1 and P/2 are the cheques of his account and his signature is there on the said cheques.

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11. The Hon’ble Supreme Court in the matter of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, (2008) 4 SCC 54 held in paras 39 & 40 as under:

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“39. In K. Prakashan v. P.K. Surenderan [2007 (12) SCALE 96], this Court following M.S. Narayana Menon, (2006) 6 SCC 39 opined:

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13[12]. The Act raises two presumptions; firstly, in regard to the passing of consideration as contained in Section 118(a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118(a) and 139 are rebuttable in nature. Having regard to the definition of terms ‘proved’ and ‘disproved’ as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis-`a-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.

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14[13]. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability.

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In John K. John V. Tom Varghese, [2007 (13) SC 222], this Court held:

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“11[10]. The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge

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sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent was not even in a position to discharge his burden to pay instalments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken.”

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12. In this case also, the complainant proved his case by oral and documentary evidence and the accused also admitted the account number and cheques of his bank. The accused has failed to rebut the statutory presumption under Section 139 of the NI Act.

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13. The Hon’ble Supreme Court in the matter of M/s Kalamani Tex and another Vs. P. Balasubramanian, (2021) 5 SCC 283 held in para 18 as under:

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“18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, 36 where this court held that:

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“Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”

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14. On the basis of aforesaid discussions, the findings recorded by the

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trial Court are not in accordance with law. In case of NI Act, the complainant has only to prove the fact that the cheque in question was issued by the accused in discharge of any debt or liability to the

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complainant and under Section 139 of the Act, it shall be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 of the Act for discharge, in whole or in part, or any debt or other liability. In the given set of evidence and the facts and circumstances emerging in the case, the findings recorded by the learned trial Court are not in accordance with law. As such, the impugned judgment being not sustainable in law is liable to be set aside.

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15. In the result, the acquittal appeal stands allowed. The impugned judgment passed by the learned trial Court dated 3.9.2007 is hereby set aside. The respondent/accused is held guilty under Section 138 of the Act and is sentenced to pay a fine of Rs. 45,000/-, in default thereof to suffer RI for one year. The fine amount so deposited by the respondent/accused shall be payable to the appellant/complainant.

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Sd/ (Rajani Dubey) Judge

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Khan

Nihal Parwej v. Mohd.Hafiq Ansari @ Ballu Bhai

Case brief

What is this about?

What did the court decide?

Nihal Parwej v. Mohd.Hafiq Ansari @ Ballu Bhai

Case brief

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What did the court decide?

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