Smt. Poonam Kania Vs Vinod Chhatani

Vinod Chhatani S/o Late Ramesh Chhatani, Aged About 42 Years Proprietor Of Shimla Big Shop, R/o Shimla Big Shop, Near Pani Tanki, Shankar Nagar, Raipur, District Raipur (C.G.)

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... Respondent

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For Petitioner(s) : Mr. Premshankar Yadav, Advocate For Respondent(s) : Ms. Pragati Pandey, Advocate on behalf of Mr. Rahul Tamaskar, Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

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17.03.2025

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The appellant has filed the present acquittal appeal under Section 378(4) of the Code of Criminal Procedure, 1973 against the judgment dated 09.02.2024 (Annexure A-1) passed by the learned Judicial Magistrate First Class Raipur, District - Raipur (C.G.) in Complaint Case No. 2477/2020 by which the learned trial Court has dismissed the complaint case filed under Section 138 of Negotiable Instrument Act, 1881 on the count that the cheque forwarding memo does not establish the fact of dishonor of the

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Digitally signed by MANISH MANISH YADAV YADAV Date: 2025.04.15 15:45:21 +0530

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cheque, as such, presumption cannot be drawn in favour of the complainant.

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Brief facts of the case are that the complainant filed a complaint under Section 138 of Negotiable Instruments Act, 1881 which was registered as Complaint Case No. 2477/2020 alleging that the accused is good friend of the complainant and there is business relationship also between them. Accordingly, the complainant has given Rs. 5,00,000/- to the accused towards business purpose and the accused has not paid the amount, therefore, he has made persuasion and only then the accused has given a cheque bearing No. 140980 dated 17.03.2020 of Rs. 5,00,000/-. The said cheque was returned with an endorsement “account is closed”. Thereafter, the complainant sent a legal notice to the accused through his counsel which has been refused to accept, which has necessitated the appellant to file a complaint case.

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The complainant to prove his case has examined witnesses and exhibited documents i.e. Cheque No. 140980 dated 17.03.2020 (Exhibit P/1), Return Memo dated 18.03.2020 (Exhibit P/2), Registered Legal Notice dated 04.06.2020 (Exhibit P/3), Postal Receipt (Exhibit P/4), Acknowledgment (Exhibit P/5) and he has also submitted the reply (Exhibit P/6). The complainant was examined by the trial Court wherein she has reiterated the same stand taken in the complaint and in the cross-examination she has admitted that in the Bank Forwarding Memo (Exhibit P/2) there was no seal and signature of the bank officers. She has also denied that the fact that the cheque was given by way of security.

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It has also denied that she has purchased the material from the shop of the accused and to avoid the payment, she has made a false case against the accused. The complainant’s husband was examined as PW-2 by way of an affidavit as provided under Section 145 of the Negotiable Instruments Act, 1881, he has denied that the cheque was given to him of Allahabad Bank account and he was aware of the fact that the account has been closed. He has also denied that the accused has no debt or liability.

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The accused has examined under Section 313 of Cr.P.C. wherein he has denied the allegations and pleaded no guilty. The learned trial Court on the basis of the evidence and material on record particularly in paragraph 12 has recorded its finding that the cheque was given towards liability, as accused has not placed any material on record to rebut the presumption in favour of the complainant under Section 139 of the N.I. Act, 1881 but has dismissed the complaint case on the count that the cheque forwarding memo does not bear any seal or signature, as such, it cannot be said that the ingredients of Section 138 of the N.I. Act is violated. Being aggrieved with this order the complainant has preferred this acquittal appeal.

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Learned counsel for the appellant would submit that in paragraph 12 of the judgment the trial Court has recorded its finding that the cheque was given towards debt or liability and also recorded its finding in paragraph 15 that the notice was given to the accused within time period and despite service of notice the accused has

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not made the payment but committed illegality in recording its finding in paragraph 17 that the cheque forwarding memo does not bear seal and signature therefore, the ingredients of Section 139 of the N.I.Act has been violated, thus, would pray for allowing the appeal.

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Learned counsel for the accused would submit that this finding is legal and justified which does not warrant interference by this Court and would pray for dismissal of the complaint.

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I have heard learned counsel for the parties and perused the record.

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From the submission made by the parties, the point emerged for determination is whether the trial Court is justified in dismissing the complaint on the count that the cheque forwarding memo does not bear any seal and signature of the Bank officers to prove that the cheque has been dishonored due ‘to account closed’.

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To appreciate this point, it is expedient for this Court to go through the provisions of Sections 118, 139 and 146 of the N.I. Act, 1881, which are reproduced below:

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Section 118 of the N.I. Act, 1881:

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“118. Presumptions as to negotiable instruments.—Until the contrary is proved, the following presumptions shall be made:— (a) of consideration:—that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

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(b) as to date:—that every negotiable instrument bearing a date was made or drawn on such date;

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(c) as to time of acceptance:—that every accepted bill of

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exchange was accepted within a reasonable time after its date and before its maturity;

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(d) as to time of transfer:—that every transfer of a negotiable instrument was made before its maturity;

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(e) as to order of indorsements:—that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on;

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(f) as to stamp:— that a lost promissory note, bill of exchange or cheque was duly stamped;

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(g) that holder is a holder in due course:—that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.”

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Section 139 of the N.I. Act, 1881:

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“139. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.”

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Section 146 of the N.I. Act, 1881:

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“146. Bank’s slip prima facie evidence of certain facts.—The Court shall, in respect of every proceeding under this Chapter, on production of Bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.”

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Since the trial Court has already held that the cheque was given towards liability not as security as the accused is unable to rebut the same. Thus, the presumption under Section 139 of N.I. Act, 1881 is held to be in favour of complainant, therefore, merely due to no seal and signature of cheque return forwarding memo by the bank, the finding of the trial Court that no presumption regarding dishonor of cheque can be drawn, is misconceived. Even

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otherwise, the purpose of cheque return memo is to give the information of holder of the cheque that his cheque on presentation could not be encashed due to various reasons as mentioned in the cheque return memo. Even as per Section 146 of N.I. Act, 1881, the cheque return on presentation presumed the fact of dishonor of cheque unless and until such fact is disapproved. It is pertinent to mention here that neither Section 138 nor 146 of the N.I. Act, 1881 prescribed any particular form of cheque return memo, it is a nothing but a mere information given by the due holder of a cheque that cheque has been returned as unpaid. If the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque return memo as invalid or illegal. The cheque return memo is not document which is required to be covered under Bankers Book (Evidence Act), 1891 if there is any infirmity in the cheque return memo, it does not render entire trial under Section 138 of N.I. Act, 1881 as nullity. The Hon’ble High Court of Delhi in case of Guneet Bhasin Vs. State of NCT of Delhi & Anr. & Ors. In CRL.M.C. 4100/2022 & CRL.M.A. 16919/2022(Stay) has taken same view.

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High Court of Allahabad in case of Mohd. Yunus Malik Vs. State of U.P. and Another in application under Section 482 No. 41434 of 2022 in Neutral Citation no. 2023:AHC:140834 relying upon the judgment of Delhi High Court in case of Guneet Bhasin Vs. State of NCT of Delhi and Others in paragraph 13 has held as under:

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“From perusal of the same, it is apparently clear that if the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque as invalid or illegal. Further, if there is any

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infirmity in the cheque or letter,it does not render entire trial under Section 138 of Act, 1881 as nullity.”

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The High Court of Madras in case of India Cements Investments

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Services Limited Vs. T. P. Nallusamy in Crl. A. No. 13 of 2014 Neutral Citation No. 2017(1) MLJ(Crl)689 in paragraph 56 reads as under:

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“56. A perusal of the Judgment of the First Appellate Court in C. A. No. 1 of 2013 dated 08.11.2013 shows that the First Appellate Court had observed at paragraph 10 that in Ex. P7 -Cheque, it was written as ‘21.1.2000’ and the last ‘0’ was corrected as ‘8’ mention of on what date they were presented for collection. Moreover, the First Appellate Court went on to add that to prove the written memos filed, the HDFC Bank Manager was not examined to show how much amount was available in Respondent/Accused Account. In this connection, though a stand is taken on behalf of the Appellant/Complainant that as per Section 146 of the Negotiable Instruments Act, the Manager of the Bank need not be examined to speak about the written of three cheques etc., this Court is of the considered opinion that the Appellant/Complainant ought to examine the concerned Bank Manager to substantiate his version of the case, In fact, the evidence of the Bank Manager in favour of the Appellant/Complainant will strengthen its case.”

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Considering the fact and law on the subject, it is quite vivid that the Learned trial Court has held that the appellant is able to prove that the cheque in question was given towards discharge. So far as other finding that cheque forwarding memo does not bear the seal and signature of bank official, as such presumption under Section 138 of N.I. Act, 1881 cannot be raised, is misconceived and deserves to be set aside, and accordingly it is set aside.

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Consequentially, the appeal is partly allowed and the matter is remitted back to the trial Court for deciding the case as per the direction given by this Court in forgoing paragraphs. Since the

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parties have already appeared before this Court, no fresh notice is required to be issued to the parties. The complainant and accused shall appear before the concerning trial Court on 6^th May, 2025 . .

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With aforesaid observation and direction, present acquittal appeal is allowed in part.

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Sd/-

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(Narendra Kumar Vyas) Judge

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Manish

Smt. Poonam Kania v. Vinod Chhatani

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Smt. Poonam Kania v. Vinod Chhatani

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