The main legal point established in the judgment is the rebuttable nature of the presumption of dishonor of a cheque under the Negotiable Instruments Act and the opportunity for the accused to rebut such presumptions.

ORDER :

1. This criminal revision under section 397 read with section 401 of Criminal Procedure Code has been filed by the accused-applicants being aggrieved by the judgment dated 7-7-2018 passed by the Special Sessions Judge, Bhopal District Bhopal in CRA No. 661/2015 whereby the Court below has remanded the case to the JMFC, Bhopal for taking evidence to prove the return memo Ex.P/3.

2. It is not in dispute that Cheque No. 731089 dated 15-6-2012 issued by the applicants was dishonored due to “stop payment” by the applicant. It is also not in dispute that, notice dated 6-8-2012 has been received by the applicants for the offence punishable under section 138 of Negotiable Instruments Act.

3. Respondent’s case is that he is the owner of truck and heavy vehicles and leased them on rent. Some trucks are also attached with companies. In February, 2011, applicant No. 1 came to the respondent’s house and proposed him that a petrol pump is allotted to him. But due to shortage of funds, he proposed to make respondent to be a partner for investment. Respondent denied to become a partner, hence, applicant No. 1 requested for some money from respondent to purchase petrol and diesel. Thereafter, respondent gave the amount via cheque directly through B and C Company. Respondent in his complaint further claimed that he advanced loan from others and gave Rs. 5,50,000/- through RTGS and thereafter through cheques and lastly on 23-8-2011 an amount of Rs. 3,00,000/- as cash and Rs. 3,61,710/- as cash on 15-9-2011 to the applicant. He further claimed that from 15-4-2011 to 15-9-2011, he gave Rs. 18 lakhs to the applicant. Rs. 3 lakhs have been returned by the applicant to the respondent through cheque on 28-12-2011, thereafter he assured to return the balance amount till March 2012. In the month of March, 2012, respondent approached the applicant for return of the balance amount of Rs. 15 lakhs. Applicant assured him and gave cheque No. 731089 dated 15-6-2012 of Rs. 15 lakhs drawn on Bank of India, Awadhpuri Branch bearing his signature and seal of his company. The cheque was dishonored due to “stop payment” instructed by the applicant. Thereafter, respondent served demand notice through his advocate and on receipt of the said notice, applicant replied that he has not taken any loan from the respondent, hence, he has stopped the payment of the questioned cheque.

4. On the complaint filed by the respondent and on production of evidence, learned trial Court convicted the applicant under section 138 of Negotiable Instruments Act and sentenced him to undergo RI for 1 year with cost of Rs. 18,50,000/- to be paid to the respondent.

5. Applicant challenged the aforesaid finding in criminal appeal before the Learned Special Session Judge SC/ST (Prevention of Atrocities) Act, Bhopal wherein the appeal filed by the applicant was allowed after quashing the judgment passed by the Court of Judicial Magistrate First Class the appellate Court wrongly remanded the case to the trial Court with the direction that the complainant will prove his case with respect of bank’s return memo.

6. Applicants challenged the aforesaid finding on the ground that the learned Appellate Court wrongly gave opportunity to the complainant to fill the lacunae by permitting further evidence. For that, benefit of doubt ought to have been given in favour of the applicant. Once, Ex.P/3 is not proved, the learned Appellate Court should have passed an order of acquittal in favour of the applicant because the return memo issued by the bank in respect of dishonored cheque did not bear the seal of the bank and has not complied with the mandatory provisions of Negotiable Instruments Act, 1881.

7. Heard learned counsel for the parties. Perused the record.

8. This Court finds that the issue raised by the applicant is directly linked with the provisions of section 146 of the Negotiable Instruments Act, 1881 which reads as under:

“146. Bank’s slip prima-facie evidence of certain facts - The Court shall, in