1

2025:CGHC:3659

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

ACQA No. 554 of 2024

1 - M/s Coolage Through Proprietor James K. Wargis S/o Late C.J. Wargis,

Aged About 54 Years, Through Power Of Attorney Holder Shri Sajal James

Wargis S/o James K. Wargis Aged About 27 Years, R/o House No.30/442,

Tatyapara, Kankali Hospital, Near Brahmanpara, Sadar Bazar Road, Raipur,

District Raipur, Chhattisgarh

... Appellant

versus

1 - M/s Anil Refrigeration Work Through Proprietor Suresh Kumar S/o A. Appu

Kuttan, Aged About 60 Years, R/o Plot No. B/175, Smriti Nagar, Street No.7,

New Nehru Nagar, Bhilai, District Durg, Chhattisgarh

... Respondent

For Appellant :Mr. Pravin Kumar Tulsyan, Advocate

For Respondent :Ms. Seema Verma, Advocate appears on behalf of

Mr. Jitendra Gupta, Advocate

Hon'ble Shri Justice Narendra Kumar Vyas

Order on Board

21.01.2025

1.The appellant has filed present acquittal appeal under Section 378(4)

of the Criminal Procedure Code by which learned Judicial Magistrate

First Class, Raipur in Criminal Case No. 5175 of 2019 has acquitted

the accused for commission of offence under Section 138 of the

Negotiable Instrument Act, 1881 ( in short “the N.I. Act, 1881”).

2.The brief facts reflected from the record are that the appellant is

running business of Air Conditioners and spare parts. It is also the case

of the complainant that accused had purchased spare parts through

different invoices for Rs. 10,61,196/- and has given cheques of Rs.

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8,20,000/- out of which one cheque bearing No. 490039 of Rs.

3,00,000/- drawn at State Bank of India Branch, Smriti Nagar, Bhilai

was dishonored and returned to the appellant with endorsement that

the said cheque was dishonored due to “insufficient fund” in the

account on 26.06.2019. The complainant has sent legal notice (Exhibit

P/3) on 04.07.2019 to accused demanding amount of cheque to the

tune of Rs. 3,00,000/- which was neither replied nor the amount was

given though notice was served upon him, therefore, he has filed an

application under Section 138 of the the N.I. Act, 1881.

3.The appellant/complainant to substantiate his claim has exhibited

documents namely dishonored cheque (Ex. P/1), cheque return memo

(Ex. P/2), Legal Notice (Ex. P/3), postal receipt (Ex. P/4), consignment

(Ex. P/5), invoice (Ex. P/6 to Ex. P/17), delivery memo (Ex. P/18 to Ex.

P/28). The appellant/complainant examined himself by way of an

affidavit under Section 145 of the the N.I. Act, 1881 reiterating the

stand taken in the complaint. The witness was extensively cross-

examined by the accused wherein the complainant has categorically

stated that he has sent the material to the accused to tune of Rs.

10,61,196/- out of which the accused has given a cheque amounting to

Rs. 8,20,000/- on various dates, but he has denied the fact that the

entire amount of Rs. 8,20,000/- has been received by him out of which

one cheque of Rs. 3,00,000/- was dishonored due to insufficient fund.

He has also denied that he has claimed excess amount after receiving

the amount of Rs. 10,61,196/-.

4.The accused examined himself as DW-1 and also examined under

Section 313 of Cr.P.C. before the trial Court who has denied the

allegations and also stated that he has given one cheque as security

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as he used to purchase the material from the complainant and no

liability exists against him. He has stated that he has put signature in

the cheque, but all the entries have been recorded by other person.

The witness was cross-examined by the complainant wherein he has

admitted that whatever material he has purchased from the

complainant he takes a cash memo and voluntarily stated that he used

to give receipt in his letter pad which is exhibited as Exhibit D-1 to D-

30. He has voluntarily stated that it is a delivery memo. The witness

has also admitted that he has received legal notice (Exhibit P/3) and

admitted that since he has not given the reply, therefore, he has not

produced the same. He has also admitted that in exhibit D-1 to D-30 it

is not mentioned that the complainant has received the payment of

material mentioned in these documents. He has also admitted that in

exhibit D-1 to D-30 he has not put his signature and voluntarily stated

that the complainant’s person used to give delivery memo and collect

the cash money. He has also admitted that he has submitted a

complaint before Police (Exhibit D-32) wherein he has mentioned

about 5 cheques, but he has not mentioned the cheque numbers. He

has voluntarily stated that for every financial year one cheque was

given to the accused as security, but has not returned the same.

5.Learned trial Court after appreciating the evidence the material has

dismissed the complaint by recording its finding that the complainant is

unable to prove that the accused has given a cheque towards any

liability, therefore, it has decided the issue No. 1 against the

complainant and also decided the issue No. 2 against the complainant

on the count that the bank slips do not bear official seal of the bank and

the signature of any officer of the bank, as such no presumption can be

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raised about the presentation and dishonor of the cheque for

maintaining the complaint under Section 138 of the the N.I. Act, 1881

accordingly it has dismissed the complaint. Being aggrieved with this

order, present acquittal appeal has been filed by the complainant.

6.Learned counsel for the appellant would submit that learned trial Court

without appreciating the evidence and material on record and cogent

material was placed by the complainant to prove that the cheque was

given not as a surety but in lieu of some liability which is paramount

consideration for attracting Section 138 of N.I. Act, 1881 has dismissed

the complaint. He would further submit that so far the return memo

does not bear the signature of the bank stamp, therefore, the finding

recorded by the learned trial Court that it cannot be a banking record

as per Section 146 of the the N.I. Act, 1881 is also illegal, erroneous

and would pray for allowing the appeal.

7.Per contra learned counsel for the respondent would submit that

learned trial Court after appreciating the evidence and material on

record has recorded its finding that the complainant has not proved the

case beyond reasonable doubt that cheque was given in lieu of any

liability has rightly dismissed the complaint. She would further submit

that as per Section 146 of the N.I. Act, 1881 until and unless the bank

returning memo bears seal and signature of the bank it cannot be

termed as record. Thus, she would submit that the returning memo is

very well generated and fabricated document by the complainant. As

such the trial Court has not committed any illegality in not believing

upon the said documents and would pray for dismissal of the acquittal

appeal.

8.I have heard learned counsel for the parties and perused the records.

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9.From above submission the points required for determination of this

Court are

I. whether the complainant is able to prove that the cheque was given

towards any liability or not?

II. Whether the trial Court was justified in dismissing the complaint 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?

10.To appreciate the point No. 1 framed by this Court, it is expedient for

this Court to go through the evidence brought on record. The

complainant in his examination in chief as provided under Section 145

of N.I. Act, 1881 has categorically stated in paragraph 2 that he has

supplied the spare parts to the accused through various invoices which

is valued at Rs. 10,61,196/- and the accused has given cheque of Rs.

8,20,000/- on various dates, out of which one cheque of Rs. 3 lakhs

dated 26.06.2019 bearing No. 490039 when presented in the Union

Bank where the complainant is maintaining his account was

dishonored and returned to the complainant on 27.06.2019 dishonored

due to “insufficient fund” in the account. The witness was cross-

examined by the accused and in paragraph 31 he has denied that the

cheque was given as security and in paragraph 30 he has also denied

that he has received entire money of Rs. 8,20,000/-. The witness has

also exhibited the Delivery Challans before the trial Court (Exhibit P/18

to P/28) and Invoices (Exhibit P/6 to P/17), but there is no cross-

examination on the aspect for which material he has made payment to

the complainant to establish that cheque was given as security not to

discharge liability.

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11.The Negotiable Instruments Act, 1881 has been enacted to define and

amend the law relating to Promissory Notes, Bills of Exchange and

Cheques. Various provisions have been incorporated under the

Negotiable Instruments Act regarding Presumptions as to Negotiable

Instruments Act, 1881 and Section 139 makes it ample clear that a

person to sign a cheque and makes it over the payee remains liable

unless he adduced evidence to rebut the presumption that cheque has

been issued for a debt or in discharge of liability. It is also well settled

position of law that even a blank cheque leaf, voluntarily signed and

handed over by the accused which is towards payment, would attract

presumption under Section 139 of N.I. Act, 1881, in absence of any

cogent evidence to show that the cheque was not issued in discharge

of a debt. Thus, it is incumbent upon the accused to rebut the

presumption by leaving cogent evidence by demonstrating that he has

already paid towards entire liability of Rs. 10,61,196/- or the material

valued at Rs. 10,61,196/- was not supplied by the complainant. The

accused should have demonstrated that in view of any understanding

between the complainant and the accused, the cheques were given as

security, no such material has been placed on record. Thus, it is quite

vivid that the complainant is able to prove that cheque was given

toward liability. Thus, the finding of the learned trial Court that the

cheque was not given for any liability, is contrary to the evidence,

material placed on record and also against the law laid down by the

Hon’ble Supreme Court in case of Kalamani Tex v. P.

Balasubramanian reported in (2021) 5 SCC 283

“14. Adverting to the case in hand, we find on a plain reading of

its judgment that the trial Court completely overlooked the

provisions and failed to appreciate the statutory presumption

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drawn under Section 118 and Section 139 of NIA. The Statute

mandates that once the signature(s) of an accused on the

cheque/negotiable instrument are established, then these

‘reverse onus’ clauses become operative. In such a situation,

the obligation shifts upon the accused to discharge the

presumption imposed upon him. This point of law has been

crystalized by this Court in Rohitbhai Jivanlal Patel v. State of

Gujarat in the following words: (SCC pp. 120-21, para 18)

“18. In the case at hand, even after purportedly drawing

the presumption under Section 139 of the NI Act, the trial

court proceeded to question the want of evidence on the

part of the complainant as regards the source of funds for

advancing loan to the accused and want of examination of

relevant witnesses who allegedly extended him money for

advancing it to the accused. This approach of the trial

court had been at variance with the principles of

presumption in law. After such presumption, the onus

shifted to the accused and unless the accused had

discharged the onus by bringing on record such facts and

circumstances as to show the preponderance of

probabilities tilting in his favour, any doubt on the

complainant's case could not have been raised for want of

evidence regarding the source of funds for advancing loan

to the appellant-accused.”

12.The Hon’ble Supreme Court again in case Rajesh Jain vs Ajay Singh

reported in 2023 (10) SCC 148 has held in paragraphs 33 to 44 which

reads as under:

“33. The NI Act provides for two presumptions: Section 118 and

Section 139. Section 118 of the Act inter alia directs that it shall

be presumed, until the contrary is proved, that every negotiable

instrument was made or drawn for consideration. Section 139

of the Act stipulates that 'unless the contrary is proved, it shall

be presumed, that the holder of the cheque received the

cheque, for the discharge of, whole or part of any debt or

liability'. It will be seen that the 'presumed fact' directly relates to

one of the crucial ingredients necessary to sustain a conviction

under Section 138.

34. Section 139 of the NI Act, which takes the form of a ‘shall

presume’ clause is illustrative of a presumption of law. Because

Section 139 requires that the Court ‘shall presume’ the fact

stated therein, it is obligatory on the Court to raise this

presumption in every case where the factual basis for the

raising of the presumption had been established. The rules

discussed hereinbelow is common to both the presumptions

under Section 139 and Section 118 and is hence, not repeated-

Reference to one can be taken as reference to another But this

does not preclude the person against whom the presumption is

drawn from rebutting it and proving the contrary as is clear from

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the use of the phrase ‘unless the contrary is proved’.

35. The Court will necessarily presume that the cheque had

been issued towards discharge of a legally enforceable

debt/liability in two circumstances. Firstly, when the drawer of

the cheque admits issuance/execution of the cheque and

secondly, in the event where the complainant proves that

cheque was issued/executed in his favour by the drawer. The

circumstances set out above form the fact(s) which bring about

the activation of the presumptive clause. [Bharat Barrel Vs.

Amin Chand] [(1999) 3 SCC 35]

36. Recently, this Court has gone to the extent of holding that

presumption takes effect even in a situation where the accused

contends that 'a blank cheque leaf was voluntarily signed and

handed over by him to the complainant. [Bir Singh v. Mukesh

Kumar11]. Therefore, mere admission of the drawer's signature,

without admitting the execution of (2019) 4 SCC 197 the entire

contents in the cheque, is now sufficient to trigger the

presumption.

37. As soon as the complainant discharges the burden to prove

that the instrument, say a cheque, was issued by the accused

for discharge of debt, the presumptive device under Section

139 of the Act helps shifting the burden on the accused. The

effect of the presumption, in that sense, is to transfer the

evidential burden on the accused of proving that the cheque

was not received by the Bank towards the discharge of any

liability. Until this evidential burden is discharged by the

accused, the presumed fact will have to be taken to be true,

without expecting the complainant to do anything further.

38. John Henry Wigmore12 on Evidence states as follows:

“The peculiar effect of the presumption of law is merely to

invoke a rule of law compelling the Jury to reach the

conclusion in the absence of evidence to the contrary from

the opponent but if the opponent does offer evidence to the

contrary (sufficient to satisfy the Judge's requirement of

some evidence), the presumption 'disappears as a rule of

law and the case is in the Jury's hands free from any rule.”

12 Rules of Evidence- The Hidden Origin of Modern Law

39. The standard of proof to discharge this evidential burden is

not as heavy as that usually seen in situations where the

prosecution is required to prove the guilt of an accused. The

accused is not expected to prove the non-existence of the

presumed fact beyond reasonable doubt. The accused must

meet the standard of ‘preponderance of probabilities’, similar to

a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR

2010 SC 1898)]

40. In order to rebut the presumption and prove to the contrary,

it is open to the accused to raise a probable defence wherein

the existence of a legally enforceable debt or liability can be

contested. The words ‘until the contrary is proved’ occurring in

Section 139 do not mean that accused must necessarily prove

the negative that the instrument is not issued in discharge of

any debt/liability but the accused has the option to ask the

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Court to consider the non-existence of debt/liability so probable

that a prudent man ought, under the circumstances of the case,

to act upon the supposition that debt/liability did not exist.

[Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also

Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]

41. In other words, the accused is left with two options. The first

option-of proving that the debt/liability does not exist-is to lead

defence evidence and conclusively establish with certainty that

the cheque was not issued in discharge of a debt/liability. The

second option is to prove the non-existence of debt/liability by a

preponderance of probabilities by referring to the particular

circumstances of the case. The preponderance of probability in

favour of the accused's case may be even fifty one to forty nine

and arising out of the entire circumstances of the case, which

includes: the complainant's version in the original complaint, the

case in the legal/demand notice, complainant's case at the trial,

as also the plea of the accused in the reply notice, his 313

statement or at the trial as to the circumstances under which

the promissory note/cheque was executed. All of them can

raise a preponderance of probabilities justifying a finding that

there was ‘no debt/liability’. [Kumar Exports and Sharma

Carpets, (2009) 2 SCC 513]

42. The nature of evidence required to shift the evidential

burden need not necessarily be direct evidence i.e., oral or

documentary evidence or admissions made by the opposite

party; it may comprise circumstantial evidence or presumption

of law or fact.

43. The accused may adduce direct evidence to prove that the

instrument was not issued in discharge of a debt/liability and, if

he adduces acceptable evidence, the burden again shifts to the

complainant. At the same time, the accused may also rely upon

circumstantial evidence and, if the circumstances so relied

upon are compelling the burden may likewise shift to the

complainant. It is open for him to also rely upon presumptions

of fact, for instance those mentioned in Section 114 and other

sections of the Evidence Act. The burden of proof may shift by

presumptions of law or fact. In Kundanlal's case- (supra) when

the creditor had failed to produce his account books, this Court

raised a presumption of fact under Section 114, that the

evidence, if produced would have shown the non-existence of

consideration. Though, in that case, this Court was dealing with

the presumptive clause in Section 118 NI Act, since the nature

of the presumptive clauses in Section 118 and 139 is the same,

the analogy can be extended and applied in the context of

Section 139 as well.

44. Therefore, in fine, it can be said that once the accused

adduces evidence to the satisfaction of the Court that on a

preponderance of probabilities there exists no debt/liability in

the manner pleaded in the complaint or the demand notice or

the affidavit-evidence, the burden shifts to the complainant and

the presumption 'disappears' and does not haunt the accused

any longer. The onus having now shifted to the complainant, he

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will be obliged to prove the existence of a debt/liability as a

matter of fact and his failure to prove would result in dismissal

of his complaint case. Thereafter, the presumption under

Section 139 does not again come to the complainant's rescue.

Once both parties have adduced evidence, the Court has to

consider the same and the burden of proof loses all its

importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC

1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441]

Our Analysis.”

13.From the abovestated legal position and evidence brought on record by

the complainant as well as the accused, it is quite vivid that accused is

unable to rebut the presumption by adducing some evidence on the

principle of probabilities also as the accused has nowhere clarified that

for which material mentioned in the exhibit P/1 to P/30 he has made

payment. The learned trial Court ignoring the evidence of the

complainant that he has admitted in his examination-in-chief that the

accused has given cheques of Rs. 8,20,000/- out of them one cheque

for Rs. 3 Lakhs was dishonored which remained unshaken in the

cross-examination of the complainant. The record of the case

demonstrates that the accused is unable to rebut that the amount of

Rs. 8,20,000/- has been paid to the complainant and the trial Court

unnecessarily examined the fact that out of Rs. 10,61,196/-, Rs.

8,20,000/- has been paid, as such only Rs. 2,41,196/- is payable

therefore, the cheque of Rs. 3 lakhs is a security amount. Even the trial

Court has failed to consider that the accused has nowhere taken a

defense that he has to pay only Rs. 2,41,196/- and the cheque of Rs. 3

lakhs has been given towards security and unnecessarily struggle to

record a finding that the complainant has not given any explanation

how the liability of Rs. 3 lakhs is accrued against the accused. Thus,

the finding of the learned trial Court that complainant is unable to prove

that the cheque of Rs. 3 lakhs was given towards any liability is

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erroneous finding of the facts deserves to be set aside by this Court,

and accordingly it is set aside.

14.To appreciate the point No. 2 framed by this Court, it is expedient for

this Court to go through the provisions of Sections 118, 139 and 146 of

the N.I. Act, 1881, which are reproduced below:

Section 118 of the N.I. Act, 1881:

“118. Presumptions as to negotiable instruments.—Until the

contrary is proved, the following presumptions shall be made:—

(a) of consideration:—that every negotiable instrument was

made or drawn for consideration, and that every such

instrument, when it has been accepted, indorsed, negotiated or

transferred, was accepted, indorsed, negotiated or transferred

for consideration;

(b) as to date:—that every negotiable instrument bearing a date

was made or drawn on such date;

(c) as to time of acceptance:—that every accepted bill of

exchange was accepted within a reasonable time after its date

and before its maturity;

(d) as to time of transfer:—that every transfer of a negotiable

instrument was made before its maturity;

(e) as to order of indorsements:—that the indorsements

appearing upon a negotiable instrument were made in the order

in which they appear then on;

(f) as to stamp:— that a lost promissory note, bill of exchange or

cheque was duly stamped;

(g) that holder is a holder in due course:—that the holder of a

negotiable instrument is a holder in due course: provided that,

where the instrument has been obtained from its lawful owner,

or from any person in lawful custody thereof, by means of an

offence or fraud, or has been obtained from the maker or

acceptor thereof by means of an offence or fraud, or for unlawful

consideration, the burden of proving that the holder is a holder

in due course lies upon him.”

Section 139 of the N.I. Act, 1881:

“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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Section 146 of the N.I. Act, 1881:

“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.”

15.This Court while deciding the point No. 1 has already held that the

cheque was given towards liability not as security as the accused is

unable to rebut the same and even to substantiate his stand that the

description made in the cheques has been written by another person,

no permissible evidence has been adduced. Thus, the presumption

under Section 139 of N.I. Act, 1881 is held to be in favour of

complainant, therefore, merely due to no seal and signature of cheque

return forwarding 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. Even as per Section 146 of N.I.

Act, 1881, the cheque return on presentation presumed the fact of

dishonor of cheque unless and until such fact is disapproved. 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 a

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 required to be covered under Bankers Book

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(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.

16.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 judgment of

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

and Others in paragraph 13 has held as under:

“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.”

17.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:

“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

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Appellant/Complainant will strengthen its case.”

18.Considering the fact and law on the subject, it is quite vivid that the

Learned trial Court has failed to consider the fact that the appellant is

able to prove that the cheque in question was given towards discharge,

as such this finding is quashed. 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, is misconceived and deserves to be set aside, and accordingly

it is quashed.

19.Consequentially, the matter is remitted back to the trial Court only to

prove that cheque was presented before the bank and it has been

dishonored due to “insufficient funds” in the account 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 with the affairs of dishonor of the

cheques of the bank.

20.Consequentially, the appeal is partly allowed and the matter is remitted

back to the trial Court for deciding the case 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 18.03.2025.

Sd/-

(Narendra Kumar Vyas)

Judge

Bhumika