Ismail Beg vs Vishal Jain - 2025 Supreme(MP) 905

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(MP) 905

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
RAJENDRA KUMAR VANI, J.
Ismail Beg - Appellant
Versus
Vishal Jain – Respondent
Criminal Appeal No. 11571 of 2022
Decided On : 05-12-2025

Advocates Appeared:
For the Appellant : Shri Shafiquallah, Adv.
For the Respondent: Shri J.L. Soni, Adv.

Headnote:
(1) Negotiable Instruments Act, 1881 -- Ss. 138, 118, 139 and 20 -- financial capacity of complainant to advance Rs. 4,00,000/- not questioned by accused from inception though he cross-examined complainant on this point -- complainant revealed sources satisfactorily, which remained unrebutted -- accused did not utter anything in this regard in his defence -- rather, he took defence that he did not know complainant -- held -- initial burden in respect of financial capacity has been well-established by complainant -- presumption u/ss. 118 and 139 coupled with provisions of S. 20 applies -- accused utterly failed to rebut it -- complainant has established that cheque in question was given by accused for discharge of legally enforceable debt or liability -- acquittal set aside -- conviction and sentence restored and upheld. (2022) 11 SCC 705, (2019) 4 SCC 197 and Criminal Appeal No. 1755 of 2010 followed. 2025 SCC Online Del. 8429 relied on. [Paras 19, 22 & 26]
(2) Negotiable Instruments Act, 1881 -- S. 138(b) -- statutory notice -- effect -- it has to be presumed that cheque was issued towards discharge of liability. Criminal Appeal No. 1755 of 2010 followed. [Para 24]
(3) Negotiable Instruments Act, 1881 -- S. 138 -- defence of accused that cheque in question and gold were given as security to a person other than complainant and that person did not return cheque and gold even after payment -- non-examination of that person and non-filing of any FIR or complaint against him draws adverse inference against accused. [Para 25]
¼1½ ijØkE; fy[kr vf/kfu;e] 1881 & /kkjk 138] 118] 139 rFkk 20 & :i;s 4]00]000@& nsus dh ifjoknh dh foÙkh; gSfl;r dks vfHk;qä us vkjaHk ls ç'uxr ugha fd;k] ;|fi mlus bl fcanq ij ifjoknh dh çfrijh{kk dh & ifjoknh us lek/kkuiwoZd lzksr çdV fd, tks v[kafMr jgs & vfHk;qä us viuh çfrj{kk esa bl ckjs esa dqN ugha dgk & cfYd mlus çfrj{kk yh fd og ifjoknh dks ugha tkurk & vfHkfu/kkZfjr & ifjoknh }kjk foÙkh; gSfl;r ds laca/k esa vkjafHkd Hkkj vPNh rjg LFkkfir fd;k x;k & /kkjk 118 vkSj 139 ds lkFk /kkjk 20 ds micaèkksa ds v/khu mi/kkj.kk ykxw gksrh gS & vfHk;qä mldk [kaMu djus esa furkar vlQy jgk & ifjoknh us LFkkfir fd;k fd vfHk;qä }kjk ç'uxr pkSd fof/kr% çorZuh; _.k ;k nkf;Ro ds mUekspu ds fy, fn;k x;k Fkk & nks"keqfä vikLr & nks"kflf) vkSj naMkns'k çR;kofrZr vkSj ekU; fd, x,A ¼2022½ 11 ,llhlh 705] ¼2019½ 4 ,llhlh 197 rFkk nkafMd vihy Øekad 1755 lu~ 2010 vuqlfjrA 2025 ,llhlh v‚uykbu fnYyh 8429 voyafcrA ¼iSjk 19] 22 ,oa 26½
¼2½ ijØkE; fy[kr vf/kfu;e] 1881 & /kkjk 138¼[k½ & dkuwuh lwpuki= dk mÙkj ugha fn;k x;k & çHkko & mi/kkj.kk dh tkuk gksxh fd pkSd nkf;Ro ds mUekspu ds fy, tkjh fd;k x;k FkkA nkafMd vihy Øekad 1755 lu~ 2010 vuqlfjrA ¼iSjk 24½
¼3½ ijØkE; fy[kr vf/kfu;e] 1881 & /kkjk 138 & vfHk;qä dh çfrj{kk fd ç'uxr pkSd vkSj Lo.kZ ifjoknh ls brj fdlh O;fä dks çfrHkwfrLo:i fn, x, Fks rFkk ml O;fä us lank; fd, tkus ds i'pkr~ Hkh pkSd vkSj Lo.kZ ugha ykSVk, & ml O;fä dh ijh{kk ugha fd, tkus rFkk mlds fo:) çFke bfÙkyk fjiksVZ ;k f'kdk;r ugha fd, tkus ls vfHk;qä ds fo:) çfrdwy fu"d"kZ fudyrk gSA ¼iSjk 25½

ORDER :

RAJENDRA KUMAR VANI, J.

I.A. No.23461/2022, an application under Section 378(4) of Cr.P.C. has been filed seeking leave to appeal against the judgment of acquittal dated 17.10.2022 passed in Criminal Appeal No.82/2021 (Vishal Jain Vs. Ismail Beg) by 14th Additional Sessions Judge, Bhopal (M.P.) arising out of judgment dated 11.02.2020 passed in Criminal Case No.13398/2016 by JMFC, Bhopal, whereby the appellate court allowing the appeal has set aside the judgment of the Trial Court and has acquitted the respondent/accused (for short "accused") from the charge of offence punishable under Section 138 of the Negotiable Instruments Act.

2 . I have gone through the impugned judgments of the Courts below. On due consideration leave is granted to appellant. I.A. No.23461/2022 is disposed of accordingly.

3. With the consent of learned counsel for the parties, the matter is heard finally.

4 . The brief facts of the case, as alleged by the appellant/complainant (in short "complainant") in the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act") are that both the parties are known to each other. The complainant had given Rs.4,00,000/- for a month to accused to fulfill his personal needs. The accused did not return the aforesaid amount after a month and on being made demand of the aforesaid amount by the complainant, he handed over a cheque bearing No.042514 dated 05.03.2015 of Rs.4,00,000/- to complainant. On being presented the said cheque in the bank, the same got dishonoured due to the reason "Payment stopped by Drawer". Again on presenting the cheque in the bank, the same got dishonoured on the same ground. The accused/respondent did not return the amount even after receipt of demand notice dated 10.06.2015 on behalf of complainant.

5. The accused denied the allegations made in the complaint and stated that he has been falsely implicated in the case. His defence is that he had borrowed Rs.1,50,000/- in lieu of cheque and gold given to one Tabrez Khan. The aforesaid amount has been repaid by him but the cheque has not been returned by Tabrez Khan rather he while misusing the cheque gave it to the complainant.

6 . The learned Trial Court, after hearing the parties and considering the material on record, vide judgment dated 11.02.2020 convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced to undergo R.I. for six months and directed to pay compensation of Rs.5,77,592/- to the complainant under Section 357 (3) of Cr.P.C. with default stipulations. In addition, the accused was further directed to pay Rs.20,000/- for expenses to complainant under the provisions of Section 359 of Cr.P.C.

7. Being aggrieved by the judgment passed by the learned Trial Court, the accused preferred an appeal. The learned appellate Court setting aside the judgment passed by the learned Trial Court allowed the appeal and eventually acquitted the accused of the offence under Section 138 of NI Act. Hence, the present appeal.

8. It is submitted by the learned counsel for the appellant/complainant that the learned Trial Court has convicted the respondent/accused, however the learned appellate court has acquitted the accused on the grounds that the present appellant/complainant could not prove his financial capacity to advance Rs.4,00,000/- and only on this ground the order of acquittal has been passed, which is erroneous. He has a good case on merits. He prays to set aside the order of acquittal of learned appellate court and to restore the judgment of conviction and sentence of learned trial court.

9. Per contra, learned counsel for the respondent/accused has submitted that the learned appellate court has considered various factual aspects and rightly came to the conclusion that the present appellant/complainant has no financial capacity to lend Rs.4,00,000/- to the respondent/accused, therefore, the order of acquittal has rightly been passed by the learned appellate court.

10. Heard