CAV Judgment

1. By this acquittal appeal, appellant/complainant has challenged the legality and propriety of judgment of acquittal dated 12.08.2011 passed by the Judicial Magistrate First Class, Durg, Chhattisgarh in Complaint Case No.221 of 2011, whereby the trial Court has acquitted the respondent of the charge punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act”).

2. Undisputed fact of the case, is that, the parties were known to each other and cheque in question (Ex.P/1) bears signature of accused.

3. Brief facts of the case, are that, accused wanted money for marriage of his daughter and on his demand, complainant Shailendra Kumar Tandi gave him Rs.63,000/- (Sixty-three thousand rupees). Accused Mangal Ram was about to take voluntary retirement and promised to pay amount thereafter. Accused given a cheque of Rs. 63,000/- (hereinafter referred to as “cheque in question”) to the complainant on 28.02.2004, which he deposited in his UCO Bank account, Civic Centre, Bhilai, Durg on 06.03.2004. Then, on 06/03/2004, memo vide Ex.P/3 was received from bank to the effect that amount could not be paid due to shortage of funds, upon which, he sent a notice to accused by registered post within the stipulated time through his Advocate, but he did not give any reply as also did not make any payment on time. Thereafter, he filed a complaint case before the trial Court on 22.04.2004.

4. Complainant Shailendra Kumar Tandi was himself examined before the trial court. The statement of accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), in which, he denied the circumstances appearing against him and pleaded innocence and false implication in the case. He further stated that complainant took his signature on a blank cheque with the promise of getting him loan, but no loan was given to him and complainant taken a cheque for his commission. In order to prove his defence, he has examined Lal Singh Mandavi (DW-1), Clerk of Punjab National Bank, Branch Civic Centre, Bhilai, where accused had an account, who stated in reference to Ex.D/1 & Ex.D/2 that accused has requested the branch to stop payments of total 6 cheques vide Ex.D/1 (dated 07.07.2003), which also contained cheque in question.

5. After considering the facts and circumstances of the case as well as after hearing both the parties, learned trial Court vide judgment dated 12.08.2011, acquitted the accused for the charge levelled against him under Section 138 of the N.I. Act by holding that complainant had only received a blank cheque from accused and complainant has failed to authenticate the remaining entries in cheque except the signature.

6. Learned counsel for the appellant/complainant would submit that issuance of cheque signed by accused has been accepted. In this situation, a presumption is created in his favor under Sections 118 and 139 of the N.I. Act and accused has failed to rebut said presumption. Hence, it will be considered that cheque signed by accused in his name has been issued only for full or partial payment of debt enforceable by law. He would further submit that conclusion of trial Court for acquitting the accused is not justified. In these circumstances, appeal be allowed, judgment of acquittal be set aside and accused be convicted and punished. Reliance has been placed upon the verdict rendered by Hon’ble Supreme Court in case of Kalamani Tex and Another v. P. Balasubramanian, (2021) 5 SCC

283 to buttress his submissions.

7. No one has appeared on behalf of respondent to argue the case.

8. I have heard learned counsel for the appellant/complainant and perused the record with utmost circumspection.

9. Complainant Shailendra Kumar Tandi has presented a cheque in question (Ex.P/1) before the Court, which was given by accused. The memorandum of bank regarding cheque being returned without payment has been presented vide Ex.P/3. The acknowledgment letter of re