IMPORTANT POINT
Dishonour of cheque – Onus is not on complainant at threshold to prove his capacity/financial wherewithal – Only if objection is raised that complainant was not in a financial position to pay amount so claimed by him to have been given as a loan to accused, only then complainant would have to bring before Court cogent material to indicate that he had financial capacity.

JUDGMENT :

AHSANUDDIN AMANULLAH, J.

1. The present appeal impugns the Final Judgment and Order dated 21.02.2024 in Criminal Revision Petition No. 619 of 2020 (hereinafter referred to as the ‘Impugned Order’)¹ [2024:AHC-LKO:15310] passed by the High Court of Judicature at Allahabad, Lucknow Bench (hereinafter referred to as the ‘High Court’) allowing the petition and setting aside the concurrent findings of guilt and conviction recorded against respondent no. 2 (hereinafter also referred to as the ‘accused’) in the Order dated 12.04.2019 in Complaint Case No. 6650/2012 passed by the Presiding Officer/Additional Court, Room No. 5, Lucknow (hereinafter referred to as the ‘Trial Court’) as later upheld by the Additional Sessions Judge, Court No. 1, Lucknow (hereinafter referred to as the ‘Appellate Court’) vide Order dated 23.10.2020 in Criminal Appeal No. 148/2019.

FACTS:

2. The appellant is the complainant in Complaint Case No. 6650/2012. He alleged that he had advanced a loan of Rs. 22,00,000/- (Twenty-Two lakhs) to the respondent no. 2 on the assurance that the entire amount will be returned. When the appellant demanded return of the money, the accused issued Cheque No. 726716 dated 17.03.2010 for an amount of Rs. 22,00,000/- (Twenty-Two lakhs) drawn on the Bank of Baroda. The appellant presented the said cheque for encashment at IDBI Bank, Main Branch, Lucknow. On 07.05.2010, the cheque was dishonoured with the endorsement ‘payment stopped by drawer’ and the cheque along with receipt was returned. Subsequently, the appellant attempted to contact the accused seeking return of the money but the accused neither met him nor returned the money. The appellant sent a Legal Notice dated 18.05.2010 through Registered Post. However, the accused did not reply to the Notice. Hence, a complaint case was registered by the appellant.

3. On an appreciation of facts and the evidence presented before it, the Trial Court vide Order dated 12.04.2019 found the accused guilty of having committed an offence under Section 138² ["Dishonour of cheque for insufficiency, etc. of funds in the account - 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 provision of this Act, be punished with imprisonment for a term which may extend 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: (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; (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 (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. Explanation - For the purposes of this section “debt or other liability” means a legally enforceable debt or other liability"] of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘Act’) and sentenced him to one year of simple imprisonment along with fine of Rs. 35,00,000/- (Rupees Thirty-Five Lakhs). In case of default in making the payment of