2025:CGHC:18400 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.M.P No.1221 of 2025 Alok Shrivastav S/o Shri Ashok Kumar Shrivastav (Now Dead) Aged About 48 Years Through Samta Shrivastav Wd/o Late Alok Shrivastav, R/o Mahadevghatpara Shiv Mandir Ward, Jagdalpur, Distt. Bastar (C.G.) ... Petitioner/Complainant versus Jyoti Mohanti D/o Sitaram Mohanti Aged About 45 Years R/o Dr. Ramsnehi Gali, Durga Chowk, Sadar Ward, Jagdalpur, Distt. Bastar (C.G.) ... Respondent/accused For Petitioner : Shri Ashok Kumar Shukla, Advocate.

Hon'ble Shri Justice Deepak Kumar Tiwari

Order on Board

23.04.2025

1. This Petition has been filed for grant of special leave to Appeal Digitally signed by SISTLA NEELIMA under Section 419(4) of BNSS, 2023 against the judgment of acquittal VISHNU PRIYA Date:

2025.04.24

11:09:49 dated 06.02.2025 passed by the JMFC, Jagdalpur, District Bastar in +0530 Complaint Case No.136/2017 whereby, the Respondent/accused has been acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’).

2. As per the complaint, the deceased husband of the Complainant has filed a complaint case alleging inter alia that he was a vehicle transporter as also the agent of the Insurance Company and the Respondent/accused was working in Mahaveer Automobile, Jagdalpur and was also dealing with RTO and insurance cases and both the parties were having business affairs with each other. The Respondent/accused has borrowed cash of Rs.5 lacs for her child’s education from the deceased Complainant which was given to her by him on 08.05.2016 and for repayment of the same, a promissory note was executed. On 05.08.2016, the Respondent/accused has returned Rs.20,000/- in cash and for the remaining amount i.e. Rs.4,80,000/-, a cheque was issued. When the said cheque was presented for encashment before the Bank on 06.08.2016 (Ex.P-1), it was dishonoured (Ex.P.-2) for which, legal notice was sent to the Respondent/accused (Ex.P-3) but even thereafter, as the repayment was not done, a complaint case has been registered against her. During trial, the original Complainant-Alok Shrivastava has died, therefore, his wife has been impleaded as a party to pursue the matter. After evaluating the evidence on record, the learned trial Court has acquitted the Respondent/accused of the charge under Section 138 of the NI Act. Hence this Appeal has been filed.

3. Shri Shukla submits that the trial Court has acquitted the Respondent/accused only on the ground that the Appellant/Complainant has failed to establish his financial capacity and the source of income though the said facts have duly been established by him, therefore, the finding recorded by the said Court is perverse and prays to grant leave to Appeal.

4. Heard learned Counsel for the Petitioner and perused the annexed documents with utmost circumspection.

5. In the matter of Rajesh Jain Vs. Ajay Singh, reported in (2023) 10 SCC 148, the law relating to the effect of legal presumption as per Sections 118 & 139 of the NI Act has been clarified. As per Section 118 of the said Act it shall be presumed, until the contrary is proved that every negotiable instrument was made or drawn for consideration and as per Section 139 of the said Act “unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge, in whole or in part of any debt or other liability. Both the presumptions are rebuttable in nature. The relevant paras of the aforesaid judgment i.e. 33 to 44 are reproduced hereunder:-

“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 liabilit