Swapan Kumar Sinha Vs State of Jharkhand And Anr.

2026:JHHC:9728

IN THE HIGH COURT OF JHARKHAND AT RANCHI Acquittal Appeal (S.J) No.17 of 2007

[Against the Judgment of acquittal dated 20.02.2007, passed by the learned Additional Judicial Commissioner - II -cumSpecial Judge No.1, CBI (AHD Scam), Ranchi in Cr. Appeal No.54 of 2006/ TR No.07 of 2006]

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Swapan Kumar Sinha, Son of Late Banbari Prasad, C/o Gautam Lal, 330/B, Ashok Nagar, Road N.4, P.O. Ashok Nagar, P.S. - Argora, District - Ranchi. ….. Appellant

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Versus

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The State of Jharkhand

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Raj Kumar Pandey, Son of Late Mahavir Pandey, Resident of Bardman Compound, P.O and P.S – Lalpur, District – Ranchi. ..... Respondents

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PRESENT

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HON'BLE MR. JUSTICE RAJESH KUMAR

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For the Appellant : Ms. Omiya Anusha, Amicus Curiae For the State : Mr. Satish Kr. Keshri, A.P.P For the Resp. No.2 : Mr. Shwetang Kr. Tiwari, Advocate ---------

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Order No.11/ Dated: 07th April, 2026

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1. Heard Ms. Omiya Anusha, learned Amicus Curiae , Mr. Satish Kumar Keshri, learned A.P.P and Mr. Shwetang Kumar Tiwari, learned counsel for the respondent No.2.

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2. The present acquittal appeal has been filed by the complainant/ appellant against the judgment of acquittal dated 20.02.2007, passed by the learned Additional Judicial Commissioner - II -cum- Special Judge No.1, CBI (AHD Scam), Ranchi in Cr. Appeal No.54 of 2006/ TR No.07 of 2006, whereby and whereunder the judgment dated 30.01.2006, passed by the learned Judicial Magistrate, 1^st Class, Ranchi in Complaint Case No.120 of 2003/ TR No.849 of 2006, has been set aside and the respondent

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No.02 has been acquitted and has been discharged from the liability of his bail bond.

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3. The criminal law has been put into motion by lodging a complaint case being Complaint Case No.120 of 2003 by the appellant-complainant.

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The brief facts of the case, as alleged in the complaint, is that the complainant-appellant entered into an agreement with the respondent No.02 for the sale and purchase of a piece of land bearing R.S. Khata No.69, Plot No.1441 comprising of an area 01 katha 08 chhatak in the name of his wife Pushpa Ranhi and advanced Rs.50,000/-. It has been further alleged that the said negotiation failed and thereafter, the respondent No.02 issued a cheque of State Bank of India, Kokar Branch bearing No.648510 dated 24.06.2002 for a sum of Rs.50,000/- for returning the advance money. Thereafter, it has been alleged that the cheque for encashment of the said amount has been placed before the said Branch, but the same was bounced due to insufficiency of fund vide the Bank Memo dated 24.12.2002. Thereafter, the complainant-appellant has sent a legal notice against the respondent No.02 on 13.01.2003 stating about the bouncing of the cheque and noticing him to return the amount forthwith but in spite of the same, the respondent No.02 failed to give any reply to the legal notice and also has not paid the said amount and as such the complaint petition for initiating appropriate proceeding under Section 138 of the Negotiable Instrument Act, 1881

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(in short N.I. Act) has been instituted.

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The learned trial court after perusing the fact and after going through the various exhibts, statement of the witnesses both on behalf of the complainant and O.P. No.02 (Respondent No.02 herein) has come to the conclusion that there are ingredients of the offence under Section 138 of the N.I Act and held the O.P. No.02 guilty for the offence under Section 138 N.I Act and accordingly sentenced him to undergo S.I for one year and a compensation of Rs.50,000/- payable to the complainant, under Section 357(iii) Cr.P.C a sum.

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Against the said judgment and order of conviction, O.P. No.02 has filed criminal appeal being Cr. Appeal No.54 of 2006/ TR No.07 of 2006 before the court of learned Additional Judicial Commissioner - II -cum- Special Judge No.1, CBI (AHD Scam), Ranchi and by the judgment dated 20.02.2007 the appellate court has acquitted the O.P. No.02 on the ground that the offence under Section 138 of the N.I. Act has not been made out.

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4. The relevant dates for consideration of this Court is as follows :-

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(i) 24.06.2002 is the date of issuance of cheque.

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(ii) 24.12.2002 is the date of presentation of cheque and also dishonour of cheque stating “insufficient fund”.

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(iii) 13.01.2003 is the alleged date of issuance of legal notice.

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(iv) 29.01.2003 is the date of return of the unserved notice with an endorsement by the employee of the postal department that “Not in my beat” and return to the sender

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(v) 11.02.2003 is the date of filing of the present complaint petition.

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5. The other factual matrix of the case is not in dispute. For clarity, the question put under Section 313 Cr.P.C and the response of O.P. No.02 is quoted herein-below :-

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iz'u& vkius lkf{k;kas dk lk{; lquk gS \ mÙkj& th gk¡A

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iz'u& vkids f[kykQ lkf{k;ksa dk dguk gS fd vkius f'kdk;rdÙkkZ LoIu dqekj flUgk dks fnukad 24@6@02 dks 50000@& :i;k dk psd] iwoZ esa f'kdk;rdÙkkZ ls yh xbZ jkf'k dks okil djus ds Øe esa] Hkkjrh; LVsV cSad] dksdj 'kk[kk jkaph dk psd la[;k 648510 tkjh fd;k tks fcuk Hkqxrku ds vuknr gks x;kA bl laca/k esa D;k dguk gS \ mÙkj& oknh eq>ls tehu fy, FksA **_Security_** ds rkSj ij psd fn;k FkkA th gk¡A psd vuknr gqvk gSA

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iz'u& mijksDr psd jkf'k ds vukn`r gksus ij f'kdk;rdÙkkZ LoIu dqekj flUgk vius vf/koDrk ds ek/;e ls vkids uke psd jkf'k ds Hkqxrku gsrq vf/koDrk uksfVl fn;kA blds ckotwn vkius mDr jkf'k dks f'kdk;rdÙkkZ dks okil ugha fd;kA D;k dguk gS \ mÙkj& th uksfV'k izkIr ugha gqvk gSA

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iz'u& vkidks lQkbZ eas dqN dguk gS \ mÙkj& th eSa iSlk nks fd'rks esa ns pqdk gw¡A oknh us >qBk ds'k fd;k gSA

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6. The appellate court has reversed the judgment of conviction mainly on the following two grounds, which have been assailed before this Court :-

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(i) presentation of cheque is beyond six months.

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(ii) there is no service of notice, which is mandatory under the N.I Act.

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7. Learned Amicus Curiae , appearing on behalf of the

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appellant, has referred to para– 14 of the judgment, passed by the Hon'ble Apex Court in the case of C.C Alavi Haji Vs. Palapetty Muhammed & Anr. , reported in (2007) 6 Supreme Court Cases 555, and has submitted that if the notice has been sent on the correct address, then it will be deemed to have been served and the onus lies upon the opposite party to dispute the same.

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In the present case, such onus has not been discharged and as such, it will be presumed that notice has been served to the O.P. No.02. Further, notice was returned unserved on 29.01.2003 and the complaint petition has been filed within 15 days i.e. on 11.02.2003 and as such, the service of notice is there and the case has been filed within time.

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8. It has further been submitted that so far as the time frame i.e. within six months is concerned, the cheque has been presented on 24.12.2002 and the date on which the cheque has been issued has to be excluded from the calculation and if such exclusion is effected, then it is within six months and further, the bank has returned the cheque saying “insufficient fund” and not on the ground that it is beyond the period of six months.

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On the above grounds, prayer has been made to set aside the order of acquittal, passed by the learned appellate court.

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9. On the other hand, learned counsel appearing on behalf of the respondent No.02 has supported the

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judgment of acquittal stating that the law requires that a cheque has to be presented within six months and there is no exception to the said law, rather it is mandatory.

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It has further been submitted that notice has been returned by stating that “Not in my beat” and return to the sender. Thus, notice has not come out from the department and as such, the judgment of the Hon'ble Apex Court relied upon by the learned Amicus in the case of C.C Alavi Haji (Supra), is not applicable in the facts and circumstances of the present case.

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10. It has further been submitted that even if it is presumed that unserved notice has come on 29.01.2003, which has been accepted by the complainant, then the case has been filed within 15 days, which is also not permissible as per the mandate of the law.

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11. Having heard learned counsel for the parties and from perusal of records, this Court finds that the factual matrix is not in dispute, which is as follows :-

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(a) there is a commercial transaction between the parties and the cheque has been issued for the discharge of the legal liability and as such it is a legally enforceable debt for which the cheque has been issued.

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(b) the complainant is the holder of a cheque in due course and as such he has right to present the same and on dishonour, he has every right to file a complaint petition within the framework of Section

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138 of the N.I Act. Section 138 of the N.I Act reads

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as under:-

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138. Dishonour of cheque for insufficiency, etc., of funds in the account.—

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Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless—

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(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

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(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

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(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.”

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Sub-clause (a) of Section 138 of N.I Act clearly stipulates that the cheque has to be presented within six months from the date on which it is drawn, meaning thereby, the date of issuance of cheque has to be counted. If it is counted then six months will expire on 23.12.2002 while the cheque has been presented on 24.12.2002. Thus, it is beyond the period, as mandated under the law.

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(c) Notice has been issued, but it has never travelled beyond the department, rather such information has been given back to the sender of the notice that it was within the department and as such the complainant was well aware that the notice has not been served upon the respondent No.02 due to fault, if any, of the department.

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(d) If the unserved report has been received by the complainant on 29.01.2003 and the complaint petition has been filed within 15 days, even then 15 days time frame has not been given to the O.P. No.02 which is the mandate of the law.

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12. In view of above discussions, this Court finds that the complaint petition is beyond the mandate of Section 138 of the N.I Act, which is mandatory in nature. It is a civil liability which has been elevated to the criminality, but the strict compliance has to be there. Since the complaint petition is not within the parameter of Section 138 of the N.I. Act, hence, this Court finds that the order of acquittal dated 20.02.2007, passed by the court of learned Additional Judicial Commissioner - II -cum- Special Judge No.1, CBI (AHD Scam), Ranchi in Cr. Appeal No.54 of 2006/ TR No.07 of 2006, requires no interference.

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13. In the result, the acquittal appeal stands dismissed.

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14 . Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.

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15. Services rendered by Ms. Omiya Anusha, learned

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Amicus Curiae , is highly appreciable.

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16. The Secretary, Jharkhand High Court Legal Services Committee, shall pay the remuneration, as admissible, to the learned Amicus , on submission of bill(s).

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(Rajesh Kumar, J.)

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Jharkhand High Court, Ranchi Dated, the 07^th April, 2026 Ravi-Chandan /- NAFR Uploaded on 08.04.2026

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Acq. Appeal (SJ) No.17 of 2007

Swapan Kumar Sinha v. State of Jharkhand And Anr.

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Swapan Kumar Sinha v. State of Jharkhand And Anr.

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