Dismissed¶49

Anil v. Naresh Kumar

Punjab & Haryana HC13 May 2025CRM-A/728/2023

Case brief

AI extract

What is this about?

CRM-A-901-2023 and CRM-A-728-2023 (O&M), Punjab & Haryana High Court, decided 13.05.2025 by Justice Sandeep Moudgil: dismissal of appeals under S.378(4) Cr.P.C. against acquittal in cheque-dishonour cases; rebuttal of presumption under Sections 138 & 139 NI Act on preponderance of probabilities; complainant's failure to prove legally enforceable debt of Rs. 15 lakhs and financial capacity; cheques Nos. 688191 & 688192 dated 01.07.2017 dishonoured 01.09.2017 for insufficiency of funds; condonation of delay under Section 5 of the Limitation Act (108 days and 33 days); Kumar Exports v. Sharma Carpets (Crl Appeal No. 2045 of 2008) relied on.

What did the court decide?

Having heard counsel for the appellant and gone through the case file, there is no illegality or infirmity in the judgment passed by the trial court. ¶41

Anil Vs Naresh Kumar — Cheque Dishonour | Punjab & Haryana HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶49

Issue for consideration

Whether the acquittal of the respondent by the learned Judicial Magistrate Ist Class, Rohtak (judgment dated 18.01.2023) suffered from any error of law or fact warranting interference in these appeals under S.378(4) Cr.P.C. +1 more

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Court's answer

Having heard counsel for the appellant and gone through the case file, there is no illegality or infirmity in the judgment passed by the trial court.

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Ratio / Principle

Given the contradictions and lack of convincing evidence (no specific date of loan, inconsistent claimed friendship, no documentation of the Rs. 15 lakhs cash loan, unproved financial capacity, non-examination of cousin brothers Sunil and Dinesh), the accused successfully rebutted the presumption under Section 138 of the Negotiable Instruments Act; the appellant failed to prove a legally enforceable debt, mere possession of the cheque does not establish liability, and respondent Naresh Kumar has rightly been acquitted of the charges.

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Key takeaways

Presumptions under sections 138 and 139 of the NI Act are rebuttable presumptions, rebuttable on preponderance of probabilities; once the defence is able to rebut the presumption under the NI Act, it is for the complainant to prove the case beyond all reasonable doubts, a settled principle supported by the Apex Court in M/s Kumar Exports vs M/s Sharma Carpets, Crl Appeal No. 2045 of 2008.ratio¶48

Detailed headnote1 paragraphs

Negotiable Instruments Act — Appeals under S.378(4) Cr.P.C. against acquittal — Dismissed. Presumptions under sections 138 and 139 of the NI Act are rebuttable on preponderance of probabilities; once the defence rebuts the presumption, the complainant must prove the case beyond all reasonable doubts, as supported by the Apex Court in M/s Kumar Exports vs M/s Sharma Carpets, Crl Appeal No. 2045 of 2008 (relied on). Complainant did not mention the specific date of the alleged Rs. 15 lakhs friendly loan, could not establish financial capacity (contractual work, no bank withdrawal or sale deed shown), the alleged involvement of cousin brothers Sunil and Dinesh went unexamined, and inconsistencies destroyed the credibility of the claimed relationship; mere possession of the cheque does not establish liability. Judgment dated 18.01.2023 of the Judicial Magistrate Ist Class, Rohtak acquitting Naresh Kumar upheld; applications under Section 5 of the Limitation Act condoning delays of 108 days and 33 days had been allowed. By Sandeep Moudgil, J., decided 13.05.2025.

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CRM-A-901-2023 (O&M) and CRM-A-728-2023 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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238

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DATE OF DECISION:13.05.2025

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CRM-A-901-2023 (O&M)

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ANIL

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……..APPLICANT/APPELLANT

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Versus

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NARESH KUMAR ……..RESPONDENT

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CRM-A-728-2023 (O&M)

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ANIL

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……..APPLICANT/APPELLANT

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Versus

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NARESH KUMAR ……..RESPONDENT

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CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL

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Present: Mr. P.S. Sekhon, Advocate for the applicant/appellant.

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SANDEEP MOUDGIL, J

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CRM-28078-2023 in CRM-A-901-2023

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This application has been filed under Section 5 of the Limitation Act for condonation of delay of 108 days in filing the appeal.

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For the reasons mentioned in the application and in view of the submission made by learned counsel for the applicant, the application is

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Anuradha 2025.07.20 23:15 I agree to specified portions of this document

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CRM-A-901-2023 (O&M) and CRM-A-728-2023 (O&M)

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allowed and delay of 108 days in filing the appeal is condoned.

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CRM-23000-2023 in CRM-A-728-2023

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This application has been filed under Section 5 of the Limitation Act for condonation of delay of 33 days in filing the appeal.

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For the reasons mentioned in the application and in view of the submission made by learned counsel for the applicant, the application is allowed and delay of 33 days in filing the appeal is condoned.

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Main cases

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Vide this common order, this Court intends to dispose of above mentioned two appeals as common questions of fact and law are involved therein.

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For the sake of convenience, the facts are being taken from CRM-A901-2023.

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Factual matrix of the present case unfolds that the appellant, Anil, alleges that the respondent, Naresh, approached him for a friendly loan of Rs. 15 lakhs in December 2015, which was repayable on demand. To discharge his liability, the respondent issued two cheques bearing No. 688191 and 688192 both dated 01.07.2017 from his account No. 1219000100567774 totaling Rs. 15 lakhs (Rs. 8 lakhs and Rs. 7 lakhs). However, when presented on 01.09.2017 both cheques were dishonored due to insufficient funds. Despite a legal notice dated September 13, 2017, the respondent failed to pay, prompting the complainant to file two separate complaints

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Learned counsel for the appellant submits that the learned Judicial Magistrate Ist Class, Rohtak has committed a grave error in law and on facts by misappreciating the evidence adduced by the complainant-appellant

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Anuradha 2025.07.20 23:15 I agree to specified portions of this document

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CRM-A-901-2023 (O&M) and 3 CRM-A-728-2023 (O&M)

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wherein the respondent-accused failed to honour the cheque given by him for a sum of Rs. 15 lakhs (Rs. 8 lakhs and Rs. 7 lakhs).

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5. He further submits that the Learned Trial Court further erred in holding that the issuance of cheque was itself admitted by the respondentaccused during the cross examination, therefore, it seems that the learned trial Court has based its observations upon hyper technical grounds.

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In addition, he submits that since the issuance of the cheque by the accused-respondent stands admitted and proved, the legal presumption under Section 139, which mandates that the cheque was issued in discharge of a debt or liability, stands unrebutted. Therefore, the findings of the learned Trial Court are perverse and liable to be set aside.

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Heard.

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Having heard the counsel for the appellant and going through the case file, this court is of the considered opinion that there is no illegality or infirmity in the judgment passed by the trial court.

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This court noted that the appellant neither mentioned the specific date of the alleged loan in the complaint or affidavit nor provided clarity during cross-examination. The claimed friendly relationship between the appellant and respondent lacked credibility due to inconsistencies and the complainant's inability to answer basic personal details about the respondent. It appeared highly improbable that a sum of Rs. 15 lakhs would be given as a cash loan without any written documentation or acknowledgement. The appellant/complainant also failed to establish financial capacity to advance such a loan, having worked on a contractual basis and with no bank withdrawal

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or sale deed presented to support the alleged source of funds. The involvement

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Anuradha 2025.07.20 23:15 I agree to specified portions of this document

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CRM-A-901-2023 (O&M) and CRM-A-728-2023 (O&M)

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of cousin brothers Sunil and Dinesh was alleged but neither was examined, raising further doubts.Given these contradictions and the lack of convincing evidence, the accused successfully rebutted the presumption under Section 138 of the Negotiable Instruments Act. The appealant failed to prove a legally enforceable debt, and mere possession of the cheque does not establish liability. Therefore, respondent Naresh Kumar has rightly been acquitted of the charges.

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Moreover, presumptions under section 138 and 139 of the NI Act are rebuttable presumptions and same are rebuttable on preponderance of probabilities. It is a settled principle of law that once the defence is able to rebut the presumption under the NI Act, it is for the complainant to prove the case beyond all reasonable doubts and the same has been supported by the Apex Court in ‘ M/s Kumar Exports vs M/s Sharma Carpets Crl Appeal No. 2045 of 2008.’

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In the light of above discussion, this court is of the strong view that no fault can be found with the judgment dated 18.01.2023 passed by the trial court and as such the present application under section 378(4) Cr.P.C stands declined as well the appeal, having no merit stands dismissed.

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Ordered accordingly.

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A photocopy of this order be placed on the file(s) of connected

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case(s).

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(SANDEEP MOUDGIL) JUDGE

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13.05.2025 anuradha (a) Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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Anuradha 2025.07.20 23:15 I agree to specified portions of this document

Anil v. Naresh Kumar

Case brief

What is this about?

What did the court decide?

Anil v. Naresh Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

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Procedural history

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