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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRR No. 106 of 2021

Order Reserved on 03.01.2022

Order Delivered on 18.01.2022

• Anil Kumar Das, aged about 48 years, S/o Banmali Das, R/o Flat

No.110, Badriprasad Apartment, Near Ganpati Hotel, Police Station

Bargarh, District Bargarh (Orissa).

---- Petitioner

Versus

1. Rasbihari Das, S/o Late Markad Das, R/o J-78, Sector-02, Shankar

Nagar Raipur, Tahsil and District Raipur, C.G.

2. State of Chhattisgarh, Through District Magistrate Raipur, District

Raipur, C.G.

---- Respondents

For Petitioner

Ms. Fouzia Mirza, Senior Advocate with

Mr. Rahim Ubwani, Advocate.

For Respondent No.1

Mr. Swajeet Singh Ubeja, Advocate.

For Respondent No.2/State

Mr. Chitendra Singh, Panel Lawyer.

Hon’ble Shri Justice Gautam Chourdiya

C A V Order

1. Heard on admission.

2. With the consent of the parties, the matter is heard finally as record

of the Court below is available.

3. Challenge in this revision petition filed under Section 397 read with

401 of Cr.P.C. is to the judgment dated 26.02.2020 passed by the

Sessions Judge, Raipur, C.G. in Criminal Appeal No.247/2019

whereby it has modified the judgment dated 09.04.2019 of Judicial

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Magistrate First Class, Raipur, C.G. in Criminal Complaint Case

No.2199/2016 and while upholding the conviction of the petitioner

under Section 138 of the Negotiable Instruments Act (for short ‘ the

N.I. Act), modified the sentence of three months simple

imprisonment and fine of Rs.4,70,000/- by sentencing him to

imprisonment till rising of the Court and directing to pay

compensation of Rs.5,50,000/- to the complainant, in default to

undergo simple imprisonment for six months.

4. As per averments in the complaint, the petitioner happens to be the

relative of the complainant and relations between them were

cordial. The petitioner being in need of money for his business

obtained a sum of Rs.8,00,000/- from the complainant against

selling of his residential plot in favour of the complainant and in lieu

of the said amount, he issued a cheque bearing No.036882 dated

16.1.2016 amounting to Rs.4,50,000/- of HDFC Bank, Bargarh

(Orissa). However, when the said cheque was presented by the

complainant before the Corporation Bank Pandri, District Raipur,

C.G. on 10.02.2016, the same stood dishonoured on 11.2.2016

due to insufficient fund in the account of the petitioner. Thereafter,

the complainant sent a legal notice on 17.2.2016 to the petitioner

through his Advocate which was received by him 20.02.2016 but

even thereafter the petitioner did not make payment of the cheque

to the complainant which compelled the complainant to file a

complaint case under Section 138 of N.I. Act before the Court.

5. Learned counsel for the petitioner submits that the cheque in

question was not issued by the petitioner in favour of the

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complainant towards any liability. In fact, the cheque in question

was stolen by someone and has been misused by the complainant.

There is no amount given by the complainant to the petitioner as no

supporting document i.e. income tax return or any statement of

account was produced before the trial Court. There are

contradictions between the pleadings in the complaint and

statement of the complainant before the trial Court and as such the

petitioner has wrongly been held guilty under Section 138 of the

N.I. Act by the trial Court. It is submitted that the presumption

under Section 139 of the N.I. Act is rebuttable presumption. The

complainant has not produced any document regarding payment of

money to the petitioner. Being so, the judgment of the trial Court as

also of the Appellate Court are liable to be set aside.

Reliance has been placed on the decision of Hon’ble

Supreme Court in the matter of Basalingappa vs. Mudibasappa

reported in 2019 Volume 5 SCC 418.

6. On the other hand, learned counsel appea