NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRR No. 650 of 2011 Anand Suryavanshi S/o Narain Prasad Suryavanshi, Aged about 30 years, R/o Tikara Para, Near Mama-Bhanja Talab, House Of Dinesh Dewangan, P.S.-City Kotwali, Tahsil And Distt.-Bilaspur, C.G.

---- Applicant Versus Md.Idrish S/o Late Md. Usman, Aged about 36 years, R/o Tar Bahar, Near Masheeh Chhaya, P.S. Tar Bahar, Tahsil & District- Bilaspur, Chhattisgarh ---- Non-applicant (Cause-title taken from the Case Information System)

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For Applicant :- Mr. Shakti Raj Sinha, Advocate For Non-applicant :- Mr. D.K.Vishwakarma, Advocate -------------------------------------------------------------------------------------

SB - Hon'ble Shri Justice Sanjay K. Agrawal

Order On Board

08.05.2024

1. The accused/applicant has preferred this criminal revision under Section 397 read with 401 of the CrPC, 1973, calling in question the legality, validity and correctness of judgment/order dated 19.10.2011 (Annexure A/8), passed by learned III Additional Sessions Judge, Bilaspur in CRA No.124/2011 (Anand Suryavanshi Vs Mohammad Idrish), whereby, the order dated 23.04.2011, passed by the trial Court, convicting and sentencing the applicant for offence under Section 138 of the Negotiable Instruments Act, 1882 (for short the ‘NI Act’) has been affirmed with slight modification.

2. Mr. Shakti Raj Sinha, learned counsel for the applicant would submit that the complainant (non-applicant herein) himself has admitted in the agreement (Exhibit C/1) that a blank cheque was given to him in terms of security of the vehicle and in the statement before the Court as also in the cross-examination, he has admitted that the cheque in question was given as security of the vehicle and for maintenance or securing any other damages and there was not any debt or any other liability/legally enforceable debt, which the applicant herein was obliged to discharge, therefore, Section 138 of the NI Act is not attracted in the present case. As such, both the Courts below have failed to appreciate the said facts and consequently, the impugned orders deserve to be quashed.

3. Mr. D.K.Vishwakarma, learned counsel for the respondent submits that the two Courts below have correctly held that the cheque in question was given for debt or any other liability, therefore, the concurrent findings of the two Courts below are to be maintained and this criminal revision deserves to be dismissed.

4. I have heard learned counsel appearing for the parties, considered their rival submissions made herein above and went through the records with utmost circumspection.

5. In the case at hand, by way of order dated 19.10.2011, the applicant has been convicted for offence under Section 138 of the NI Act and sentenced to undergo simple imprisonment for six months and to pay compensation of Rs.1,50,000/- and, in case of default in payment of compensation amount, sentenced to undergo additional simple imprisonment for 02 months.

6. In this regard, it is relevant to notice the decision of the Supreme Court in Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Anr., [(2023) 1 SCC 578] wherein their Lordships have laid down in paragraph 10 the ingredients that would attract Section 138 of the NI Act, which read as under :-

“10. Section 138 of the Act provides that a drawer of a cheque is deemed to have committed the offence if the following ingredients are fulfilled:

(i) A cheque drawn for the payment of any amount of money to another person;

(ii) The cheque is drawn for the discharge of the ‘whole or part’ of any debt or other liability. ‘Debt or other liability’ means legally enforceable debt or other liability; and (iii) The cheque is returned by the bank unpaid because of insufficient funds.

However, unless the stipulations in the proviso are fulfilled the offence is not deemed to be committed.

The conditions in the proviso are as follows:

(i) The cheque must be presented in the