Ramakant Shraf Vs Krishana Kumar

... Respondent / Accused ( Cause title, as taken from CIS ) For Appellant : Mr. Mayank Gupta, Advocate appears on behalf of Mr. Anurag Singh, Advocate For Respondent : Mr. K.K. Pandey, Advocate.

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(Hon’ble Shri Justice Naresh Kumar Chandravanshi)

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Order on Board

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09/10/2025

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This acquittal appeal has been preferred by the appellant/complainant challenging the judgment dated 05.01.2018 passed by the Third Upper Sessions Judge, Janjgir, District Janjgir Champa (CG) in Criminal Appeal No.43/2016, whereby the judgment of conviction and order of sentence dated 14.03.2016 passed by the Judicial Magistrate First Class, Akaltara, District Janjgir Champa (henceforth referred to as “JMFC”) in Complaint Case No.549 / 11 has been set aside and the

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accused has been acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (henceforth referred to as “NIA Act”). By the said judgment, the learned trial Court has convicted the respondent herein/ accused under Section 138 of the NIA Act and sentenced him to undergo 6 months R.I. and also imposed fine of Rs.5000/-, in default of payment of fine, to further undergo 1 month SI.

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Facts of the case, in brief, are that the appellant / complainant (henceforth referred to as the ‘complainant’) and the respondent / accused (henceforth referred to as the ‘accused’) are residents of same village. The accused had obtained a sum of Rs.2,00,000/- from complainant to purchase the land and in lieu thereof, the accused has issued an impugned cheque dated 15.02.2011 worth of Rs.2,00,000/-, but the same has been dishonoured upon depositing it in bank by the complainant. Notice was duly served to the accused, despite that, cheque amount was not paid by him, therefore, the complainant filed a complaint case under Section 138 of the NIA Act.

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After appearance of the accused, particulars of the offence were read and explained to him, but he absurd his guilt and claimed trial.

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The complainant examined two witnesses in support of his case. The statement of the accused was recorded under Section 313 of Cr.P.C., wherein he denied all the incriminating circumstances appearing against him in the evidence adduced by the complainant. He claimed himself to be innocent and alleged false implication and has examined two witnesses in his defence.

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Learned trial Court, after considering the evidence adduced by the parties, vide judgment dated 14.03.2016, convicted and sentenced the

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accused as has been mentioned in opening paragraph of this judgment.

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The accused challenged the judgment of conviction and order of sentence dated 14.03.2016 passed by the JMFC by filing Appeal No.43/2016, which has been allowed by the Third Upper Sessions Judge vide impugned judgment dated 05.01.2018 and the judgment of conviction passed by the trial Court was set aside. Being dissatisfied, the complainant has preferred CRMP, in which, leave to appeal was granted to the complainant vide order dated 04.02.2020, thereafter, that appeal is converted as an acquittal appeal.

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Learned counsel for the appellant/complainant would submit that the subject cheque was given by respondent/accused to the appellant to discharge loan amount of Rs.2,00,000/-, which was also signed by him. He would further submit that signature present in the impugned cheque (Ex. P-1) has been examined by hand writing expert Ashok Swarnkar (DW-1), but he has also not opined that signature of impugned cheque was not a signature of accused. He next submitted that without any cogent reason, learned Appellate Court has set aside the judgment of conviction and order of sentence passed by the trial Court, which is completely perverse to the evidence available on record. Hence, he prays that this appeal may be allowed by setting aside the impugned judgment passed by the appellate Court and the judgment passed by learned trial Court may be upheld.

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Per contra , learned counsel for the respondent / accused would submit that the judgment passed by learned Appellate Court is well reasoned

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judgment, which does not call for any interference by this Court, 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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Complainant Ramakant Shraf (PW-1) has stated in his deposition that impugned cheque (Ex. D-1) was given to him by respondent/accused in lieu of the payment of loan amount of Rs.2,00,000/- taken by accused from him by putting his own signature. This fact has also been supported by Purushottam (PW-2). But, the complainant himself has not attested the alleged signature of accused in impugned cheque.

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As per deposition of respondent / accused Kirshan Kumar (DW-2), aforesaid cheque was stolen by complainant from his house. He has further stated that neither he has issued said cheque nor he has borrowed any amount from complainant. During cross-examination, neither his alleged signature present in impugned cheque (Ex. D-1) has been shown to him and got attested nor Ashok Kumar Swarnkar (DW-1), who examined the signature of alleged cheque, has opined that signature of that cheque and specimen signature, which he had obtained from order sheets of the trial Court, are signature of one and the same person. Even on carefully examining the same, alleged signature of accused present in impugned cheque and his signature present in order sheets of the trial Court are not found to be similar. Thus, it has not been proved by complainant that impugned cheque was issued by respondent / accused by putting his signature.

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Section 139 of the NIA Act provides presumption in favour of holder, which reads thus:-

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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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Aforesaid presumption arises only when it is proved by complainant that subject cheque was issued by accused under his signature. If this fact itself is not proved, then presumption under Section 139 of the NIA Act does not arise in favour of complainant. Since signature of accused is not proved, therefore, it cannot be held that alleged cheque was issued by accused for payment of any amount of money to be paid by him to the complainant for the discharge of debt or any other liability.

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In view of the above discussion, I do not find any merit in the instant acquittal appeal, hence the same is dismissed . No order as to cost(s).

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Record of the Courts below be returned forthwith along with a copy of this order.

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Sd/-

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(Naresh Kumar Chandravanshi) Judge

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Rukhsar

Ramakant Shraf v. Krishana Kumar

Case brief

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Ramakant Shraf v. Krishana Kumar

Case brief

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