IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Date of Decision: 30.04.2025 MANOJ KUMAR GARG …..APPELLANT VERSUS ARUN SHARMA PROP. M/S AMBA TRADERS …...RESPONDENT CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL Present: Mr. Manan Bhardwaj, Advocate Amicus Curiae for the applicant/appellant.

Mr. Gaurav Jindal, Advocate for the respondent.

****

SANDEEP MOUDGIL, J

1. The application under Section 378(4) CrPC has been filed by the appellant seeking leave to appeal against the judgment dated 11.09.2014 passed by JMIC, Kaithal (in short, 'the trial court'), vide which the respondent has been acquitted in a complaint filed by the appellant under Section 138 of the Negotiable Instruments Act, (in short, 'the NI Act').

2. Briefly, facts of the case are that the appellant filed a complaint against the respondent under the provisions of Section 138 of the Negotiable Instruments Act, 1881, for dishonour of cheque due to non-payment. The respondent, in discharge of his legally enforceable liability and outstanding debt towards the complainant, issued a cheque bearing No. 022980 dated ₹

25.02.2011 for an amount of 3,97,000/- (Rupees Three Lakhs Ninety-Seven Thousand only) drawn on Corporation Bank, Ambala Road, Kaithal from his account in favour of the complainant. Originally, the cheque was dated 25.12.2010; however, the accused himself altered the date to 25.02.2011 and authenticated the said alteration by affixing his signature on the cheque at the place of alteration. The appellant presented the said cheque for encashment on 23.07.2011 through his banker, Punjab National Bank, Kaithal, to the accused’s banker, Corporation Bank, Ambala Road, Kaithal but the same got dishonoured and returned unpaid by the banker of the accused vide return memo dated 23.07.2011 with the reason "Payment stopped by the Drawer" mentioned at Serial No. 1 of the said memo. Thereafter, the appellant upon receipt of the dishonoured cheque and the cheque return memo on 23.07.2011, served a legal demand notice dated 25.07.2011 to the accused under Section 138(b) of the Negotiable Instruments Act, 1881, through registered post with acknowledgment due, sent to both the residential and business addresses of the accused, demanding payment of the cheque amount. One of the notice envelopes was returned undelivered; however, the other was duly served upon the accused, thereby satisfying the legal requirement of notice under the Act but despite service of the legal notice, the accused has failed and neglected to make the payment of the cheque amount within the statutory period of fifteen days, and the amount remains unpaid till date. Hence, the act of the accused constitutes an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

3. Learned counsel for the appellant submits that the learned Judicial Magistrate Ist Class, Kaithal has committed a grave error in law and on facts by misappreciating the evidence adduced by the complainant-

appellant. The testimony of the complainant-appellant, duly supported by the bank witness CW-1 Shri Ankur Rastogi, establishes beyond reasonable doubt that the accused-respondent issued the cheque in question towards discharge of a legally enforceable debt. There is no cogent or reliable evidence on record to rebut this presumption or establish the innocence of the accused-

respondent.

4. He further submits that the Learned Trial Court further erred in holding that the presumption under Section 139 of the Negotiable Instruments Act, 1881, does not arise in the present case. The issuance of the cheque by the accused-respondent stands admitted and proved. The denial of liability by the accused-respondent in his reply dated 12.08.2011 is a bald and unsubstantiated assertion. The legal presumption under Section 139, which mandates that the cheque was issued in discharge of a debt or liability, stands unrebutted. Therefore, the findings of the learned Trial Court are perverse and liable to be set aside.

5. Further, learned Judicial