Vinod Shadija Vs Nishchal Rathore

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2026:CGHC:7548

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRR No. 110 of 2024

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1. Vinod Shadija S/o Gyan Chand Shadija Aged About 40 Years R/o Door No. 26, 1st Floor, Aashirwad Towers, Near Raj Talkies, J.E. Road Raipur, Tahsil And District - Raipur, Chhattisgarh.

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... Applicant

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versus

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1. Nishchal Rathore S/o Shri Chunni Lal Rao Ji Rathore, Proprietor - Nishchal Construction, R/o. 19/905, Near Durga Mandir, Naharpara, Station Road, Raipur, Tahsil And District - Raipur, Chhattisgarh.

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... Respondent

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For Applicant : Mr. Manoj Pranjpe, Sr. Advocate along with Mr. Mayank Gupta, Advocate For Respondent : Mr. Yogesh Pandey, Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas

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Order on Board

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11.02.2026

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Present criminal revision has been filed by the applicant under Section 397 read with Section 401 of Code of Criminal Procedure against the judgment dated 24.08.2023 passed by the learned 14^th Additional Sessions Judge, Raipur, District Raipur (C.G.) in Criminal Appeal No. 100/2023 in case of Vinod Shadija vs. Nishchal Rathore arising out of the judgment passed by the learned Judicial Magistrate First Class Raipur, District Raipur (C.G.) in Complaint Case No. 3161/2019 by which the learned Judicial Magistrate First Class has acquitted the accused vide its judgment dated 15.03.2023.

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Digitally signed by MANISH MANISH YADAV YADAV Date: 2026.02.12 17:58:55 +0530

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Brief facts as reflected from the record are that the applicant filed a complaint under Section 138 of Negotiable Instruments Act of 1881 (for short “Act of 1881”) before the Judicial Magistrate First Class Raipur alleging that the accused has requested the applicant to provide some financial assistance through one finance broker namely Vyanktesh Chhabariya for his business purpose, accordingly, in presence of Shri Vyanktesh Chhabariya, the complainant has given Rs. 1,00,000/- vide cheque No. 035837 dated 07.01.2015 payable at Central Bank of India, Shankar Nagar Branch, Raipur (C.G.) with a condition of payment of 12% simple annual interest. Accordingly, a promissory note was executed by the accused.

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It is also the case of the complainant that the accused has paid interest from 07.01.2015 to 10.01.2017 and also extended the time period for payment of loan by signing renewal promissory note. It is also the case of the complainant that the accused has not paid the amount of interest from 10.01.2017 and a cheque was given by the accused on 18.03.2019 to the complainant bearing cheque No. 046427 dated 18.03.2019 for Rs. 1,00,000/- towards payment of principle amount. The same has been dishonored on 20.03.2019 on the count that the “account is closed” and the same was intimated to the complainant on 22.03.2019 vide forwarding memo which does not have official seal and signature of the bank. Thereafter, the complainant has sent a notice to the accused; instead of paying the cheque amount the accused has given evasive reply to the notice which has necessitated the complainant to file a complaint under Section 138 of Act of 1881.

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The complainant to substantiate his case has exhibited documents Original Cheques (Ex. P/1 & P/12), Statement of bank account (Ex. P/13), Notice under Section 138 of N.I. Act (Ex. P/14), Postal Receipt (Ex. P/15) and Acknowledgment of Registered Post (Ex. P/16 & P/17).

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The learned trial Court taking cognizance of the complaint has issued summons to the accused and thereafter, the accused entered appearance and denied the charges leveled against him and has also taken plea of false implication. The learned trial Court on the basis of evidence and material on record has recorded its finding that the accused has given the cheque towards liability. The trial Court has also recorded its finding that even after notice, the accused has not paid the amount, cheque has been submitted before the bank during its validity period and the complaint has been filed within the limitation prescribed under the Act, but since the cheque return memo does not bear signature and seal of the bank which is statutory in nature and neither it has given explanation regarding not putting signature or seal in the return memo nor has examined any witness in his support, accordingly, it has recorded its finding that cheque was dishonored on account of “account closed” has not been proved.

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Being aggrieved with the order of acquittal, the complainant has preferred a criminal appeal bearing Criminal Appeal No. 100/2023 which has also been dismissed by the learned 14^th Additional Sessions Judge Raipur by affirming all the findings recorded by the trial Court. Being aggrieved with both the orders, the applicant has preferred this revision.

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Learned counsel for the applicant would submit that since the trial Court and appellate Court have affirmed the finding with regard to debt and liability, filing of the complaint within the statutory period, as such, the ingredients of offence under Section 138 of Act of 1881 have been proved, but has committed illegality in dismissing the complaint without considering the fact that now-a-days in the cheque return memo there is no necessity to put seal and signature as the returning memos are computer generated wherein specific endorsement is made that since it is a computer generated form, therefore, no seal or signature is required in the cheque return memo, as such, dismissal of complaint on this count and affirmation by the appellate Court suffers from perversity and illegality. He would further submit that both the Courts below have committed material irregularity and illegality in dismissing the complaint though all the ingredients for attracting the offence under Section 138 of Act of 1881 have been proved by the complainant and would pray for allowing the criminal revision. To substantiate his submission he has referred to the judgment of this Court in ACQA No. 425/2024 decided on 08.04.2025 in case of Tulsi Steel Traders vs. Purva Construction .

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On the other hand, learned counsel for accused would submit that both the Courts below have rightly applied the provisions of law and there is no material irregularity and illegality which warrants interference by this Court in exercising power of revision. He would further submit that unless perpetual illegality and irregularity is pointed out by the applicant, the power of interference in the revisional jurisdiction of this Court is very limited. He would further

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submit that from the records of the case, it is quite vivid that there is no perpetual illegality or irregularity has been committed by the trial Court in its judgment which has been affirmed by the appellate Court warranting interference by this Court and would pray for dismissal of the criminal revision.

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I have heard learned counsel for the parties and perused the records with utmost circumspection.

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From above submission the point required for determination of this Court is:

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“Whether both the Courts below were justified in dismissing the complaint and affirming the dismissal of the complaint by the appellate Court by not relying upon the cheque returning memo as it does not bear seal and signature of the bank official to attract Section 146 of the N.I. Act, 1881?”

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To appreciate the point framed by this Court, it is expedient for this Court to go through the provisions of Section 146 of the N.I. Act, 1881, which is reproduced below:

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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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The learned trial Court has already held that the cheque was given towards liability and not as security as the accused is unable to rebut the same and even to substantiate his stand that the cheque has been given towards security, no permissible evidence has been adduced by the accused. Thus, the presumption under Section 139

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of Act of 1881 is held to be in favour of complainant, therefore, merely due to no seal and signature of cheque return memo by the bank, the finding of the trial Court that no presumption regarding dishonor of cheque can be drawn, is misconceived. Even 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.

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Even as per Section 146 of Act of 1881, the cheque return memo on presentation presumed the fact of dishonor of cheque unless and until such fact is disapproved and no such evidence was brought on record by the accused. 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 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

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judgment of Delhi High Court in case of Guneet Bhasin Vs. State

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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 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 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 though both the Courts below have recorded its finding that the cheque was given towards liability and in absence of any challenge to this finding, these findings are attained finality and accordingly, they are affirmed, 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,

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is misconceived and deserves to be set aside, and accordingly it is quashed.

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Consequentially, the matter is remitted back to the trial Court only to prove that cheques were presented before the bank and it has been dishonored due to “account is closed” by examining the officer of the bank alongwith records maintained in the bank including physical, computer generated record duly authenticated by the officer of the bank who is well aware of the affairs of dishonor of the cheques of the bank.

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Consequentially, the revision is partly allowed and the order of the trial Court dismissing the complaint and its affirmation by the appellate Court on the count that cheque return memo does not bear seal and signature is set aside and rest of the finding recorded by the trial Court and affirmed by the appellate Court are affirmed in absence of any challenge to it.

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Accordingly, the complaint case is remitted back to the trial Court for deciding the case afresh as per the direction given by this Court in forgoing paragraphs. Since the 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 16.04.2026 and thereafter, trial Court will make an endeavor to complete the trial within 8 months from their first appearance i.e. 16.04.2026.

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The record of the Courts below be sent back forthwith.

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Sd/(Narendra Kumar Vyas) Judge

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Manish

Vinod Shadija v. Nishchal Rathore

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