Arvind Patel Vs Rajkumar Pando

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2025:CGHC:20319

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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ACQA No.1 of 2025

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Arvind Patel S/o Rajesh Kumar Patel Aged About 28 Years R/o Gram Salva, Post Ghutra, Police Station Manendragarh, District Manendragarh Chirmiri Bharatpur (M.C.B.) Chhattisgarh. ...Appellant/Complainant

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versus

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Rajkumar Pando S/o Ranglal Pando Aged About 36 Years R/o Gram Pendri Sarastaal, Post Ghutra, Tahsil Manendragarh District Manendragarh Chirmiri Bharatpur (M.C.B.) Chhattisgarh.

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... Respondent

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For Appellant : Shri Sandeep Patel, Advocate. For Respondent : Shri JK Gupta, Advocate.

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Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board

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Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.05.06 14:51:42 +0530

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02.05.2025

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This Acquittal Appeal has been preferred under Section 419(4) of Bharatiya Nagarik Suraksha Sanhita, 2023 against the judgment dated 05.10.2024 passed by 1^st Additional Sessions Judge, Manendragarh,

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District Korea in Criminal Appeal No.84/2023 arising out of the judgment dated 23.09.2023 passed by the Judicial Magistrate First Class, Manendragarh, in Complaint Case No.423/2017 whereby, while allowing the Appeal, the learned appellate Court has acquitted the Respondent/accused for commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’).

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As per the averments of the complaint, the Respondent/accused, Surpanch of Village Panchayat, Pendri and one Sant Kumar Gond, Secretary of the said village Panchayat, for payment of Rs.1,40,000/against the supply of bricks, sand, pipes and cement, issued a cheque to the Appellant/Complainant on 05.12.2015 and the said payment was also approved by the village Panchayat on 26.11.2015. When the said cheque was presented for encashment, the same was dishonoured vide Ex.P-3 stating ‘Funds Insufficient’. Thereafter, a legal notice was sent but even then, the payment was not made and therefore, a complaint case has been filed.

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The trial Court has, after evaluating the oral and documentary evidence on record, convicted the Respondent/accused of the charge as mentioned above against which, an Appeal has been preferred, which has been allowed. Hence, this Appeal has been filed by the Appellant/Complainant.

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Shri Patel submits that the appellate Court has not appreciated the facts and evidence of the case in its proper perspective and wrongly reverted the well merited finding recorded by the trial Court. There is a legal presumption under Sections 118 and 139 of the NI Act. He placed

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reliance on the matter of Rohitbhai Jivanlal Patel vs. State of Gujrat and Another reported in (2019) 18 SCC 106 and submits that mere denial or creation of doubt is not sufficient to rebut the presumption and prays to allow the Appeal.

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On the contrary, Shri Gupta has supported the judgment impugned.

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Heard learned Counsel for the Appellant/Complainant and the Respondent/accused, perused the documents annexed with the Appeal as also gone through the judgment under challenge with due care. 7. In the matter of Budh Singh vs. State of U.P. reported in (2006) 9 SCC 731, the Hon’ble Supreme Court held that in a matter of Appeal against acquittal, the High Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidences on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration the admissible evidence and has taken into consideration evidences brought on record contrary to law.

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Further, in the matter of V.N. Ratheesh vs. State of Kerala reported

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in (2006) 10 SCC 617, the Hon’ble Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be

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interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Hon’ble Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is further held that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offence or not. It was also observed that the principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 9. In the matter of Rajesh Jain Vs. Ajay Singh, reported in ( 2023) 10 SCC 148 , the law relating to the effect of legal presumption as per Sections 118 & 139 of the NI Act has been clarified. As per Section 118 of the said Act it shall be presumed, until the contrary is proved that every negotiable instrument was made or drawn for consideration and as per Section 139 of the said Act “unless the contrary is proved, it

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shall be presumed, that the holder of the cheque received the cheque, for the discharge, in whole or in part of any debt or other liability. Both the presumptions are rebuttable in nature. The relevant paras of the aforesaid judgment i.e. 33 to 44 are reproduced hereunder:-

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“33. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that “unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability”. It will be seen that the “presumed fact” directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, not repeated- reference to one can be taken as reference to another.

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Section 139 of the NI Act, which takes the form of a “shall presume” clause is illustrative of a presumption of law. Because Section 139 requires that the Court “shall presume” the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase “unless the contrary is proved”.

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35.The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel & Drum Mfg. v. Amin Chand Payrelal] [(1999) 3 SCC 35]

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Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar (2019) 4 SCC 197]. Therefore,

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mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.

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As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.

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38.John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law on Evidence states as follows:

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“The peculiar effect of the presumption of law is merely to invoke a rule of law compelling theJury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption ‘disappears as a rule of law and the case is in the Jury's hands free from any rule.”

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39.The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the nonexistence of the presumed fact beyond reasonable doubt. The accused must meet the standard of “preponderance of probabilities”, similar to a defendant in a civil proceeding. [Rangappa vs. Sri Mohan (AIR 2010 SC 1898)]

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40.In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words “until the contrary is proved” occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist.

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[Basalingappa v. Mudibasappa (AIR 2019 SC 1983); see also Kumar Exports v. Sharma Carpets (2009) 2 SCC 513]

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41.In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused’s case may be even fifty-one to forty-nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 CrPC statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was “no debt/liability”. [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513]”

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42.The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.

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43.The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundan Lal case v. Custodian (Evacuee Property), AIR 1961 SC 1316 when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Sections 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.

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44.Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption “disappears” and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa v. Mudibasappa, AIR 2019 SC 1983; see also, Rangappa v. Sri Mohan (2010) 11 SCC 441]”

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Reverting to the facts of the present case, it is evident that the cheque was not issued in the personal capacity of the Respondent/accused and it is an office bearer cheque of the Village Panchayat issued in the capacity of Surpanch and Secretary. When a query has been put to learned Counsel for the Appellant, he failed to answer as to in what manner the Respondent/accused is personally liable when the cheque was dishonoured and as to why the village panchayat was not arrayed as a party Respondent. Further, a specific defence has been taken and a suggestion was also given to the Appellant/Complainant in para-7 of his cross-examination that when the cheque amounting to Rs.1,40,000/- got dishonoured, whether any personal cheque was given to him, to which, he categorically admits that the aforesaid cheque amount has been received by him. However, later on, he has developed a different stand that there is an outstanding amount of Rs.1,40,000/- as his father has given loan to the Respondent/accused but the Complainant has not examined his father,

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therefore, considering this backdrop, the view taken by the learned appellate Court that advance taken by the Respondent/accused by way of a cheque has already been refunded appears to be probable and therefore, this Court does not take a different view from that of the one taken by the said Court, based on the evidence available on record.

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Considering the aforesaid infirmities, this Court is of the opinion that the view taken by the trial Court is a plausible one and therefore, no interference is required.

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Accordingly, the Appeal fails and is hereby dismissed.

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Sd/-

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(Deepak Kumar Tiwari) JUDGE

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Priya

Arvind Patel v. Rajkumar Pando

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Arvind Patel v. Rajkumar Pando

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