Rajesh Kumar Jain Vs Shyampal Tamrakar

1 - Shyampal Tamrakar S/o Madhav Tamrakar Aged About 46 Years R/o Sethepara, Ward No. 6 Gandai, Tahsil- Gandai, Police Station Gandai, District Rajnandgaon, Chhattisgarh.

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... Respondent

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( Cause title, as taken from CIS )

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For Appellant : Mr. Abhishek Sharma, Advocate For Respondent : Mr. Rakesh Kumar Thakur, Advocate.

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(Hon’ble Shri Justice Naresh Kumar Chandravanshi)

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Judgment on Board

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28/10/2025

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This acquittal appeal under Section 378 (4) of the Code of Criminal Procedure, 1973 (for brevity, ‘Cr.P.C.’) has been preferred by the appellant / complainant challenging the judgment dated 06.10.2015 passed by the Sessions Judge, Rajnandgaon, District Rajnandgaon Chhattisgarh (henceforth referred to as ‘Sessions Judge’) in Criminal Appeal No.32/2014, whereby the judgment of conviction and order of

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sentence dated 04.07.2014 passed by the Judicial Magistrate First Class, Rajnandgaon, Chhattisgarh (henceforth referred to as “JMFC”) in Criminal (Complaint) Case No. 806/2013, has been set aside and the respondent/accused has been acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (henceforth referred to as “NI Act”). By the said judgment, learned JMFC has convicted the respondent herein/ accused under Section 138 of the NI Act and sentenced him to undergo 6 months S.I. and also imposed fine of Rs.10,000/-, in default of payment of fine, to further undergo 1 month S.I.

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Facts of the case, in brief, are that on 25.06.2005, the appellant / complainant (henceforth referred to as the ‘complainant’) filed complaint against the respondent / accused (henceforth referred to as the ‘accused’) under Section 138 of the NI Act stating inter alia that against purchase of building material from complainant by accused, the accused issued cheque No.614699 (Ex. P-1) dated 01.01.2005 of Jila Sahakari Kendriya Bank Mydt. Rajnandgaon, Branch Gandai, worth of Rs.21,000/, in favour of the complainant. On being deposited, the cheque in his bank i.e. Durg Rajnandgaon Gramin Bank, Branch Rajnandgaon, the same was dishonoured on account of ‘insufficient fund’. Legal notice (Ex. P-4) was served to the accused, which he denied to receive and did not pay the cheque amount, as such, the complainant filed complaint under Section 138 of the NI Act, which was registered by the learned JMFC.

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Upon issuing notice, the accused appeared before the JMFC. He abjured his guilt and claimed trial.

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So as to bring home the charge, the complainant examined himself and exhibited 7 documents along with cheque, bank receipt, legal notice, postal receipt and telegram receipt. Expect himself, the complainant did not examine any other witness in his support. Statement of the accused under Section 313 of the Cr.P.C. was recorded, in which, he denied all the incriminating circumstances appearing against him in the deposition of the complainant claiming therein that, he had not issued any cheque in favour of the complainant, but he has not examined any witness in his defence. Even the accused has not examined himself.

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After appreciation of evidence, learned JMFC convicted and sentenced the accused as has been mentioned in opening paragraph of this judgment.

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Being aggrieved, the accused challenged the judgment of conviction and order of sentence dated 04.07.2014 passed by the JMFC by filing appeal bearing Appeal No.32/2014, which has been allowed by the Sessions Judge vide impugned judgment dated 06.10.2015 and the judgment of conviction passed by the JMFC, was set aside. Being dissatisfied, the appellant/complainant has preferred CRMP, in which, leave to appeal was granted to the complainant vide order dated 22.01.2020, thereafter, that appeal is converted as an acquittal appeal.

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Learned counsel for the appellant / complainant would submit that learned Sessions Judge has set aside conviction of the respondent / accused only on the ground that the complainant has failed to prove the fact that for discharge of which debt or liability, the impugned cheque (Ex. P-1) was issued and he has also failed to prove that aforesaid cheque was pertaining to the account of

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respondent/accused. He would further submit that the complainant by examining himself on oath has proved all the facts that the accused had purchased building material from him, against which, he had issued impugned cheque worth of Rs.21,000/-, for payment of sale consideration. He next submitted that on being deposited impugned cheque, it was returned by the bank with endorsement of “insufficient fund”. It was not returned with endorsement that impugned cheque was not pertaining to the bank account hold by respondent/accused, which itself proved that the cheque was issued pertaining to the account hold by repondent/ accused. Learned counsel further submitted that the respondent has not examined any witness in his defence, thus, deposition of complainant remained unrebutted. But, learned Sessions judge without any valid reason has set aside the impugned judgment of conviction passed by learned JMFC, which is perverse and illegal. Hence, he prays that the appeal may be allowed by setting aside the impugned judgment passed by the Sessions Judge and upholding the judgment of conviction passed by the JMFC.

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Per contra , learned counsel for the respondent / accused would submit that the complainant has failed to prove any receipt or naming any shop with regard to supply of building material. In cross-examination, he could not answer the fact that, on which date, alleged building material was supplied. He further submitted that the complainant has also failed to prove that Bank Account No.2484 belongs to respondent /accused. Thus, the complainant has failed to proved his case, hence, the appeal is liable to be rejected.

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I have heard learned counsel for both the parties and perused the material available on record.

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At the outset, it is pertinent to mention here that the appellant/ complainant has examined himself and proved the fact that the impugned cheque (Ex. P-1) worth of Rs. 21,000/- was issued by respondent / accused for payment of cost of building material supplied to him by the complainant. He has also proved bank slip (Ex. P-2), refund slip (Ex. P-3) and legal notice (Ex. P-4) along with postal receipt, which show that the respondent had refused to take legal notice which is evident from endorsement made by the postman in Registry notice (Ex. P-6).

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Though the complainant has not produced any receipt or he has not stated in his cross-examination that from which shop and on which date, alleged building material was supplied, but his deposition that, impugned cheque was issued against building material supplied by him to the respondent is unrebutted, as respondent has not examined any witness including himself in his defence, whereas the complainant has proved the fact in his deposition made on oath.

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In the cases under Section 138 of the NI Act, very meticulous fact with regard to transaction, against which, impugned cheque was issued, is not required to be proved as of civil case, rather, it is expected to be proved prima facie only. The main thing to be proved by the complainant is that the impugned cheque was issued by respondent /accused in discharge of debt or liability which has been very well proved by the complainant in his deposition. Therefore, the finding recorded by the learned Appellate Court that the complainant has failed

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to prove that impugned cheque was issued to discharge which debt or liability, is completely perverse to the evidence available on record.

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Perusal of memo (Ex. P-3) sent by Durg Rajnandgaon Gramin Bank, Branch Rajnandgaon, which is bank of the complainant, shows that impugned cheque was returned on account of ‘insufficient fund’, it was not returned with endorsement that the bank account, against which impugned cheque (Ex.P-1) was issued, was not pertaining to the respondent/accused, therefore, finding recorded by the Appellate Court that, the complainant has failed to prove the fact that impugned cheque (Ex. P-1) was issued pertaining to the bank account hold by respondent has not been proved, is also found to be perverse to the evidence available on record.

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Having considered the oral as well as documentary evidence adduced by the complainant, it is evident that the complainant has proved the charge levelled against the respondent that he issued the impugned cheque (Ex. P-1) worth of Rs.21,000/- for discharge of debt / liability i.e. pertaining to the cost of building material purchased by him from appellant /complainant, but learned Sessions Judge, without any valid reason, has set aside the judgment of conviction passed by the JMFC.

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In view of above, Impugned judgment dated 06.10.2015 passed by the Sessions Judge in Criminal Appeal No.32/2014, acquitting the respondent / accused, is set aside and the judgment of conviction dated 04.07.2014 passed by the Judicial Magistrate, Rajnandgaon in Criminal (Complaint) Case No.806/2013 is upheld.

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So far as sentence part is concerned, the cases under Section 138 of the NI Act basically pertain to civil dispute and no useful purpose would

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be served to send respondent / accused behind the bar. Therefore, ends of justice would be served if in place of jail sentence, fine amount is enhanced, hence, jail sentence of 6 months imposed upon the respondent/accused is set aside. However, fine amount of Rs.10,000/imposed is enhanced to Rs. 42,000/-, which shall be paid as compensation to the appellant / complainant on being deposited by the respondent / accused within a period of 45 days from today, in default of payment of aforesaid amount within stipulated period, the respondent / accused shall undergo simple imprisonment of 3 months. However, learned counsel appearing for the respondent /accused submits that fine amount of Rs.10,000/- has already been deposited by the respondent/ accused. If it is so, then it be adjusted on aforesaid fine amount of Rs.42,000/-.

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Accordingly, the instant Acquittal Appeal is partly allowed to the extent indicated herein-above.

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Records of the trial Court as well as the First Appellate Court be returned forthwith along with a copy of this judgment for compliance and necessary action, if any.

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Sd/-

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(Naresh Kumar Chandravanshi) Judge

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Rukhsar

Rajesh Kumar Jain v. Shyampal Tamrakar

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Rajesh Kumar Jain v. Shyampal Tamrakar

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