Jammu & Kashmir High Court – Srinagar Bench
Bashir Ahmad Bhat vs Fayaz Ahmad Dar on 15 July, 2025
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CrlA(AS) 08/2021
Reserved on: 15.05.2025
Pronounced on:15.07.2025
Bashir Ahmad Bhat
.....Petitioner(s)/Appellant(s)
Through: Mr. Mir Manzoor, Advocate
V/s
Fayaz Ahmad Dar ..... Respondent(s)
Through: Mr. T. A. Lone, Advocate
CORAM:
HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL-
JUDGE
J UD G M E N T
1. This appeal came to be filed by the appellant challenging the acquittal
order/judgment passed by the court of Ld. Judicial Magistrate 1 st
Class/sub judge Chadoora (Trial Court) in the above titled complaint
Under Section 138 of Negotiable Instruments Act (for short the “Act”).
2. The appellant has challenged the acquittal Order/judgment on the
grounds: that requirements of proof under Section 138 of the Act have
been fulfilled by the appellant before the trial court in as much as the
issue of cheque, presentation of the same with the bank and the Memo
of dishonor of the cheque by the bank have been placed on record and
proved beyond any doubt. This being so, the requirements and burden
of proof on complainant under Section 138 of the Act has been
discharged by him. There means no way open before the Trial Court to
acquit the accused on this ground alone; that the
1
respondent/ accused has been examined twice before the trial courtUnder Section-242 and 342 Cr.P.C. In both the statements the
respondent has admitted that he has issued the cheque in favour of the
appellant which was not honored by the bank on the grounds of
shortage of funds available at the credit of the respondent. There is no
justification whatever available on record to discredit these admissions
and to believe a fabricated defence story as against the said admission;
that after having issued a cheque by the respondent/accusd in favour of
the appellant, it is not available to the respondent to fabricate a story in
defence which is not tenable. Issuing of a cheque for payment of an
amount to the appellant is in itself a sufficient proof that respondent
owed money to the appellant which he wanted to pay through the
medium of the cheque. This is the essence of Section-138 of N.I. Act.
After issuing a cheque no defence to the effect that the drawer of the
cheque was not under obligation to draw the same is not tenable in the
eyes of law especially under Section 138 of the Act. Such defence is
not available to the respondent/accused. That the evidence produced by
the appellant/complainant has not been appreciated in its right
perspective which has caused great prejudice to the
appellant/complainant. That the cheque was issued on 16.01.2015
favoring the complainant. It was presented on the same date before the
bank for encashment. Memo for insufficiency of funds was issued on
the same day. Notice was issued through Advocate on 23.01.2015
within statutory period. The complaint was lodged on 19.02.2015
within the statutory period. In this way the requirement under Section-
138 of the Act are perfectly complied with. The complainant has
2
discharged the burden of proof squarely. These aspects of the matter
have not been appreciated by the Trial court.”
3. On presentation of the complaint, the cognizance was taken and
summons were issued to secure the presence of the accused person/
respondent. On 04.03.2015, the accused appeared before the Trial
court. On 13.04.2015 the statement of the accused was recorded and the
complainant was asked to produce his witnesses. In order to
substantiate his claim, the complainant produced and examined three
witnesses besides appearing himself as witness. The brief resume of the
complainant’s evidence is as under:
1.Bashir Ahmad Bhat (Complainant);
On examination by the counsel for the complainant he has stated
that he knows the accused. The accused was working as on
employee in the complainant’s shop. He has trusted the accused and
has good relations with him. On September, 2014, after 15 days
floods the accused asked the complainant for giving some money to
him and he will repay the same within two to four months. The
complainant somehow managed the money from here and there and
a sum of Rs. 5,25,000/- was handed over to the accused in front of
Tanveer Ahmad and Abdul Rashid Gojri. After 3 to4 months the
complainant approached the accused for payment of the said
amount. The accused gave a cheque of Rs.5,25,000/- to the
complainant and the date of withdrawal of cheque was mentioned as
16.01.2015. When the complainant approached to the concerned
bank for encashment of the cheque but same was not encashed. The
cheque has been shown to the complainant in the open court which
3
the admitted to be the same as was given by the accused to him and
the same is exhibited as EX-C1. Thereafter, the complainant also get
the cheque memo from the bank, same has been shown to him in the
open court and is exhibited as EX-C2. The complainant told the
accused about the matter and the accused adopted delaying tactics.
He also went to the house of the accused where the accused used
abusive language to the complainant. On 23.01.2015, the
complainant served legal notice to the accused through his counsel
and same is on file, which has been shown to him and is marked as
Mark “C3”. After 15 days of publication, the counsel for the
complainant has submitted the same in the court. The legal notice
was delivered through registered post and the photocopy of the said
notice is on file and is marked as mark “C4”.
In cross examination by the counsel for the accused he has
deposed that he knows the accused since 4 to 5 years. He knows the
accused because the accused was selling chicken. The accused
worked as an employee in his shop. He did not remember how long
the accused had worked as employee. There is not any attested
document with regard to the employment of the accused with him.
The complainant gave the accused Rs. 6,000/- as a salary. He did
not remember from period the accused worked as employee. Last
time on January, 2015 the accused was working there. He gave such
amount t the accused in front of Tanveer Ahmad who is resident of
Chanapora, Adil Bashir who is the sone of the complainant and
Abdul Rashid Gojri of Wadipora who is shopkeeper at Chanapora.
He did not remember on which date he has given the amount to the
4
accused. However, after September floods he has given the amount.
Before that the accused has not taken any amount from the
complainant. The accused has not borrowed any amount from the
family members of the complainant. Then asked he has taken the
amount from Adil Bashir as debt and did not repay the same to Adil
Bashir. We have only once given debt to the accused. When the
complainant has given the money to the accused and at the same
time the accused has taken from the son of the complainant also. ,
We have trust with each other. The complainant has borrowed the
money from others and gave it to the accused. He has taken the said
amount as debt from Abdul Samad Dar, Ab. Rashid Gojri and
Tanveer Ahmad. He did not remember how much and from whom
he has taken debt. The complainant is economically well and has 60
Kanals of land. He has also four vehicles and four houses. He has
capacity to hire an employee. The complainant has another case of
cheque bouncing in Srinagar court. It is not true that he has shown a
newspaper to the person or an Advocate with regard to the
conviction of the accused. Besides this, there is one more case
pending with regard to cheque bouncing and decree had been passed
in favor of the complainant and conviction has been passed against
the accused in which the complainant has given the debt to the
accused five years prior to the institution of the present case. He was
running his business on his own name and not with another name.
Monthly income of the complainant is about Rs. 20,000/-. He did
not remember on which day the accused gave a cheque. However, it
was the month of January. The accused gave the cheque to the
5
complainant in front of Tanveer Ahmad and Adil Bashir. He called
the said persons and told them that the accused is about to give him
a cheque. The cheque was signed by the accused and also mentioned
the account number by his own handwriting and the amount was not
mentioned. The amount was written on the cheque by the
complainant himself. Legal notice was handed over to the accused
on 23.01.2015 by the counsel for the complainant. The accused was
simply an employee with the complainant when he was working
there. He has not knowledge that who has brought the accused to the
complainant for employment and with regard to the salary of the
accused there is no account.
2. Tanveer Ahmad Rah:
On examination by the counsel for the complainant he has deposed
that the knows the accused. The accused was selling chicken in the
shop of the complainant. They were in good relations. After 15 to
20 days of September 2014, floods the accused has taken an amount
of Rs. 5,25,000/- in the complainant house and the deponent was
also present there. The complainant has counted the money and
handed over to the accused as debt. The accused told the
complainant that he will pay the debt amount in two to two and half
months. After a long time, the complainant in presence of the
deponent told the accused that he has dire need of money and asked
him to pay the same. The deponent also told the accused to repay
the amount to the complainant. After that, on January 2015 the
accused gave a cheque to the complainant in which the amount of
Rs. 5,25,000/- was written. The accused gave a cheque in presence
6
of the deponent. The same was shown to the witness which headmitted as the same cheque which the accused had given to the
complainant. Thereafter the complainant approached the concerned
bank for encashment and the cheque was not en-cashed. After 2/3
days the deponent went to the shop of the complainant and heard
that the cheque has bounced.
In cross examination by the counsel for the accused he has
deposed that he knows the accused and the complainant for four
years. They have good relations with each other. He cannot say that
the relations are too good that they can give a blank cheque to each
other. He did not remember the date and day on which the
complainant gave the cash to the accused. It was the month of
September. Besides the witness the other persons namely, Adil and
Abdul Rashid Gojri were also present. It was early morning. The
accused has not his own shop but was working in the shop of
complainant. He was employee of the complainant and not son of
the complainant. He has no knowledge about the salary of the
accused. He was told by Bashir Ahmad that the accused was his
employee. Besides Bashir Ahmad nobody told the witness that the
accused is an employee of the complainant. He has no personal
knowledge about employment of the accused and did not know him
personally. Only one cheque was issued by Fayaz Ahmad and the
date was 16.01.2015. The cheque was issued before 5 to 10 days of
due date. The cheque was written before a day and not written in
front of him. Neither he can tell that who wrote the cheque nor can
say who signed the cheque in front of him. He has no personal
7
knowledge about the insurance policy nor can say that there was an
insurance matter between the parties. In his presence no decision
arrived at between the parties. When the complainant gave the
money to the accused the notes were in thousands and consists of
five bundles and Rs. 25,000/- was in hundred. He did not remember
the number of the said cheque. He has not seen the accused to taking
salary from the complainant as an employee. He went to the
complainant’s shop by chance when the cheque was issued. Besides
deponent only Abdul Rashid was present on spot. It is true that the
accused was running a chicken shop and the material was provided
by complainant. He can’t say in whose name the bill is passed. No
further action was taken in presence of the deponent.
3. Hanif-u-din Nakishbandi:
On examination by the counsel for the complainant he has deposed
that at present he is posted at B. K. Pora as a Branch Manager. On
January 2015 he was posted at the same branch. Account bearing
No. 2014-5 is in his branch and the proprietor is Fayaz Ahmad Dar.
The account is on the name of MIRs POULTRY. He issued the
cheque book in the name of Fayaz Ahmad. A cheque amounting to
Rs. 5,25,000/- dated 16.01.2015 was presented in his branch for
payment and the same was not en-cashed due to insufficient balance
and the direction was issued to stop payment. The signature of the
issuing person on the cheque was present. On 16.01.2015 cheque
was issued in the name of issuing person holding the said account
with debt balance of Rs. 13,97,090.24/-. In this account the available
balance was Rs. 2,900/- only. The memo placed on record is issued
8
by the deponent from the concerned branch with stamp. We issuememo in case when there is insufficient fund in the account or for
other reasons also. The memo is not signed by him but is duly signed
by second office.
In cross examination by the counsel for the accused he has stated
that the memo was not signed before him. He can’t say whether the
memo was signed by second officer or not. Further action done in
the memo was not done in his presence. The register on which
receipt of memos are entered is not with him. As such as in the
memo the action has not occurred in presence of him. He has not
brought the register of memo with him. The cheque mentioned is a
bearer cheque. The said cheque contains the amount which is above
than bearer limitation that is why it could not pay to the third party.
With cheque no payee slip was enclosed. About this cheque no
signature of drawee is endorsed. By mistake he has deposed that
signature on the cheque is of accused. He can’t say without looking
at the record that is why he apologizes for that. There are about
seven thousand accounts in his branch. He can’t know the details of
all the accounts. He can tell by looking that record. He has no
knowledge that the accused is a defaulter of any and as it never
appears in his notice. According to account statement of the accused
his account is running well. The accused’s loan is for trade poultry.
He can’t say at the branch who offered cheque for payment. He can’t
say with who issued the memo.
9
4. Faheem-u-din;
On examination by the counsel for the complainant he has stated
that in the year 2015 he was posted at B. K. Pora as P.O. The account
bearing No. B.K.060302014-5 is account of his branch and is in the
name of Fayaz Ahmad. The cheque amounting to Rs. 5,25,000/-
dated 16.01.2015 Branch B. K. Pora was offered for payment. The
said cheque was shown to him in the open court. At the time of
issuing the memo he has checked the signature of the accused on the
cheque and is exhibited as EX-C1 1.06.2015. The memo was shown
to him in the court which is true and correct and bears his signature
and same is exhibited as CZ-C2 11.06.2015. Insufficient fund was
written on the memo. Rs. 2,900/- was in the account of the accused.
The memo was issued because of insufficient amount in the account.
He has issued the memo in respect of the cheque of the same
account.
In cross examination by the counsel for the accused the witness
has deposed that he has seen the accused in the bank and not knows
him personally. He can’t orally say the name, parentage and
residence of the accused. The account about he has discussed is a
business account and is CC Account. The Bank issues the CC
account to whom who deals with business of any kind and not issued
to whom who works as an employee in the said business. It is the
fact that Fayaz Ahmad is running a business that is why he is holding
CC Account. He has no knowledge about the number of CC account
at the time when he was posted at B. K. Pora Bank. He can’t say on
which account and whose signature is but on duty he can identify
10
the signature on cheque. The accused has not signed the cheque in
front of him. Person from the court along with summon approached
to him and he make his presence today in the court. The mark of
insufficient is marked on the cheque when the cheque is presented
for clearance. When the cheque is offered by the applicant himself
this kind of act is not done. He can’t say that pay in slip is enclosed
with the cheque or not when it is offered for payment. The pay in
slip enclosed with the cheque is mandatory and was not enclosed
with the present cheque. Memos are in pads without serial numbers.
Memo record is not available in the bank. He has no knowledge that
the memo record is in computer or not because his running the
concerned table. He has not presented the memo record in the court.
The complainant and his son have presented cheques before the
deponent. They have submitted both the cheques at the same time.
He did not remember which one cheque was presented by whom.
He could not say that the accused was found a defaulter in the bank
record. He presented the bank statement from Nowgam Bank today
and not from B. K. Pora as all the branches are on line.”
4. On 13.04.2015, the incriminating evidence appearing in the
complainant’s evidence was explained to the accused and on
20.07.2017, the complainant’s evidence was closed. In his statement
recorded under section 342 Cr. P.C., the accused has stated that he
issued four blank cheques to the complainant for the settlement of
insurance claim. The accused has signed those cheques but did not
mention the amount and the complainant has issued those cheques and
filed the case for remaining cheque. The accused chose to lead evidence
11
in his defence to rebut the allegations leveled in the complaint, and
produced and examined six witnesses. It would be appropriate to
reproduce the said evidence hereunder:
1.Farooq Ahmad Bhat:
On examination by the counsel for the accused he has stated that
he knows the accused and the complainant. The accused was
working as a tenant in the shop of the complainant. The accused
was selling chicken and has his own business. The case which is
pending in the court, he has decided the issue before a day. The
accused’s shop was damaged in the flood and the accused’s shop
was insured. Then there erupted differences between the
complainant and the accused over the amount of insurance and
share of insurance amount. The complainant said that his share
is 40% while the accused was saying that his share is 12%. Thus,
the issue took the form of fight. He has decided the issued
between the parties with the help of people and decided that the
share of the petitioner will be 25% (Rs. 1,80,000/-). This
percentage was fixed upon the money which is likely to be paid
by the Insurance Company. We made three decisions on this
issue. This decision was taken at Nowgam and at police station
too. In these decisions 25% was fixed. The accused gave a
cheque of Rs. 1,80,000/- to the witness. The decision was
regarding the money that was to be received from the Insurance
Company.
In cross examination by the counsel for the complainant
he has stated that the decision between the parties taken after the
12
floods in 2014. The second time decision was taken in the 10 thmonth; however, its date is not insurance work or not. At that
time all are became the agents. The accused’s shop was damaged
at Kanipora. According to the deponent it was bribe money.
Bribe is given for wrong work. He doesn’t know whether bribe
was given for wrong work. He has not knowledge about loss and
the cheque.
2. Abdul Kareem Bhat:
On examination by the counsel for the accused he has stated that
he knows the parties. The accused had rented a shop of
complainant. It is true that the shop was on rent. The accused was
not a salesman of complainant and the later is also aware of this.
He made a decision only in relation to shop. The decision was
that complainant will not ask the accused to leave the shop, but
the complainant will not ask the accused to leave, the shop, but
the accused was saying that then where will he go? There was no
talk on cash transaction and no one says about transactions. The
complainant never said in presence of the deponent that he had
given cash to the accused. There was no talk of transaction and
no talk of cash. Again, the deponent decided but did not get any
result then he said they may take third decision themselves and
the accused left the shop. In his presence the complainant did not
mention that, whether the accused has borrowed cash from his
son.
In cross examination he has stated that he works as an
orderly in civil secretariat. He doesn’t remember how much the
13
accused paid for the shop and when he got this shop for rent? Hedoes not know whose shops are on the right and whose shops are
on the left side. The accused is my neighbor’s son. He knows that
the accused used to work in poultry. A year after the floods, he
along with accused and two other people went to decide a matter
but he does not know their names. He does not know how old the
accused is and he borrow money from anyone. He does not know
whether the second meeting took place or not and where.
3.Naveed Farooq:
On examination by the counsel for the accused he has deposed
that he knows the parties i.e. accused and complainant. The
accused runs shop of complainant on rent and he sells chicken
there. The case between the complainant and the accused was
filed in the court, he has decided this twice about insurance. Once
the complainant has called the accused to police station Nowgam
and he along with accused went to police station. S.I. Mohd Iqbal
was present there and a decision was taken about the insurance
claim only. However, there was no talk of transaction there. It
was proposed that 10% out of insurance claim will be given to
the complainant as the complainant’s son was pursuing the
insurance claim, but the complainant did not agreed and the
complainant left the case. The complainant was called second
time at Sanatnagar in Treat Restaurant so that the matter can be
resolved amicably but no result. Nothing emerged in the meeting
which will make it clear that there was a cash transaction. The
complainant kept saying that it cost a lot to get an insurance
14
claim. It was reiterated in both the meetings that blank chequeswere issued Fayas Ahmad to complainant in connection with
insurance claim. He has not knowledge how many cheques, the
accused gave to complainant, four or five.
In cross examination by the counsel for the complainant
he has stated that he does not know how much the accused paid
rent for the shop. He does not know how long the shop was on
rent. He does not know whose shop is on right and whose shop
on left side. He had to go the accused’s shop sometime. However,
he usually went to godown. Accused lives in Kanipora while the
deponent live in Nowgam. He does not remember the date when
the meeting was held at the police station. The witness, accused
ad one person from Kanipora and two persons from Nowgam
were present in the meeting. The meeting took place after 2014
floods. The meeting concluded orally but was not written. The
complainant had lodge a complaint against the accused but he
denied and said that he has just lodged the report on phone. He
does not remember the date and time of second meeting. The
second meeting was held after 10 of 14 days of the first meeting.
However, he knows the petitioner because of the meeting. He
heard the name of the son of petitioner on the same day. Before
the meeting, the deponent did not know that the accused had
given the cheques to the complainant. He doesn’t know whether
the complainant works with insurance or not. No cheque was
issued in his presence but was issued earlier. The godown was
damaged. The insurance claim was for Rs. 6.00 lacs and the
15
second claim was stopped by the complainant. He does notaccompany the accused always. He doesn’t know from where the
accused obtained loan and what he does? However, the accused
works as poultry. Farooq Ahmad is not a witness in this case but
he has not given any testimony in the second meeting. Showkat
Ahmad and Naveed Farooq i.e. the witness and a person from
Kanipora whose names was not known by the witness.
4. Showkat Ahmad Bhat:
On examination by the counsel for the accused he has stated that
he knows the parties. The accused is a chicken seller. The shop
was owned by complainant and the accused was a tenant there
and was doing private business and he had a salesman too. The
accused was not a servant i.e. salesman of complainant. A cheque
case was between the accused and complainant and a case was
registered with regard to cheque in police station Nowgam. The
petitioner met Inspector Iqbal from outside i.e. from outside
police station, then the same Inspector called both the parties
outside police station near Railway Nowgam, Naveed Ahmad,
Fayaz Ahmad, Showkat Ahmad and the complainant was there.
The Inspector said that the accused had given four cheques to the
complainant relating to flood linked insurance and the
complainant accepted it. He tried to solve the problem. The
accused said that he will give 10% to 15% to complainant but the
complainant did not agree and asked for 32%. Hence no decision
was arrived at and everyone left the spot. The complainant said
that he will file a case before the court. There is no mention in
16
front of witness that the complainant or his sone has given anycash to the accused.
In cross examination by the counsel for the complainant
he has stated that he went to the accused’s shop once or twice.
No one side there is a dairy shop and he doesn’t know whose
shop is on other side. He doesn’t know about the rent and whether
rent agreement was done or not. The complaint which was
lodged by complainant was not written. The conversation took
place outside police station near Railway station and was after
2014 floods. He doesn’t remember the month however, a month
and half after the floods. Only Inspector Iqbal was from police
and no other police personnel was present. The complainant had
a shop which is on rent. The complainant did not work for
insurance but his friend does. The flood caused damage to the
paneling of house, chicken and chicken feed of the accused. He
doesn’t know whether the insurance claim was received or not.
The percentage that the accused wa giving to complainant was a
bribe because at that time everyone was paying bribe to get their
claims. The accused has issued four blank cheques to the
complainant. The account number of accused was at Kanipora.
He keeps coming to the deponent and asks about transaction
because the accused was illiterate. The accused has given a lot of
money to many persons as debt and the deponent has also
obtained from him.
17
5. Aijaz Ahmad Thokar:
On examination by the counsel for the accused he has stated that
he knows the parties. Fayaz Ahmad works for poultry. Fayz
Ahmad’s shop was at Chanapora and this is the shop of the
complainant. However, this shop was rented. He also worked at
this shop. He was an employee of Fayaz Ahmad and he also paid
salary to the deponent. Fayaz Ahmad used to run his business on
rented shop. The fact is that the whole issue was pertaining to
insurance. In the yar 2014 there was flood. The dispute is with
regard to money which the accused was likely to get from
insurance. Bashir Ahmad told the accused that he would make an
insurance. Bashir Ahmad told the accused that he would make an
insurance case for the accused and it was decided that
complainant will get 12% per lac out of that money. But the
complainant started asking the accused to give 50% and the
accused refused for paying the same. SHO Nowgam had decided
that the accused would pay 12% from the insurance money but
the complainant did not accept this decision. In this decision
besides SHO there were two other police persons and the
witness. And another decision took place at residential house
near Nowgam Goal was about the percentage. However, the
petitioner was adamant on 50%, this was the dispute between
them. There was no cash transaction between the parties in
presence of witness. However, the issue was only on insurance.
In cross examination by the counsel for the complainant
the witness has deposed that he was working with the accused
18
and was selling chickens. He comes in court at the request ofaccused. Bashir Ahmad is a shopkeeper. He doesn’t know
whether Bashir Ahmad works for insurance or not. However, the
complainant had said that he will bring out the insurance money
to accused. The house had insurance of Rs. 5.00 lacs. He doesn’t
know whether Fayaz Ahmad got the insurance money or not.
Fayaz Ahmad had no knowledge about insurance. He neither
remember the date and time on which the decision took place
however, after floods. He did not know the name of SHO. Fayaz
Ahmad has filed an application before the SHO and two other
police persons were present and he doesn’t know their names. He
doesn’t know whether any written statement was made or not.
The accused had issued a cheque and date was not mentioned.
The cheque was not signed in front of the deponent. Accused has
given blank cheque.
6.Mohd Munawar Rather:
On examination by the counsel for the accused he has stated that
he knows the parties. The accused is chicken seller. The accused
runs his shop of chicken at Chanapora and the shop is owned by
complainant and is on rent to accused. He has not knowledge
about the cheque. However, he has heard the parties talking on
phone, which was about 10% to 12%. The decision took place in
presence of the deponent, accused, son of complainant and some
people at a tea shop near Barzulla Hospital. The same thing
which came to light there was that there was a transaction
between the accused and the complainant on the issue of
19
percentage. And in the end, it was decided that the accused hadto pay a percentage of Rs. 1.80 lacs as insurance money and also
heard that the remaining Rs. 80,000/- was also given to
complainant. However, there was no mention of cash transaction
but only insurance percentage.
In cross examination by the counsel for the complainant
he has stated that he doesn’t remember the date on which the
decision took place at the tea shop. The shop has no name but
was a tin shed hotel and doesn’t know the name of owner of
hotel. The accused is a neighbor. He doesn’t stay with the
accused for 24 hours. However, it is known that the accused is
chicken seller. He doesn’t know much about the complainant but
knows that the complainant is a shopkeeper and that is his only
job. He heard the conversation on telephone after floods. But not
remember the date. The accused didn’t give a cheque in his
presence otherwise he would have knowledge about the cheque.
The shop was insured. However, the poultry form had insurance.
He doesn’t remember the date of floods but occurred in
September. The accused, son of the complainant, witness and
other people whom the deponent doesn’t know were present in
the decision.
5. Learned counsel for appellant has stated that the Trial Court has not
appreciated the evidence produced by him in its right perspective; even
the Trial Court laid much emphasis on mere discrepancies while
overlooking the incriminating evidence both oral as well as
documentary, which was sufficient to allow his complaint. It is being
20
stated that the Trial Court has discarded the entire evidence of thecomplainant/appellant and that impugned judgment of acquittal is
passed in perfunctory manner without appreciating seriousness of
offence committed by respondent/accused. It is being also stated that
requirements of proof Under Section 138 of the Act have been fulfilled
by the appellant before the trial court in as much as the issue of cheque,
presentation of the same with the bank and the Memo of dishonor of
the cheque by the bank have been place on record and proved beyond
any doubt. This being so the requirements and burden of proof placed
on the complainant by Section 138 of the Act has been discharged by
the complainant. There means no way open before the trial court to
acquit the accused on this ground alone the impugned judgment/order
is therefore against the law, facts and the circumstances governing the
case. He also states that respondent/ accused has been examined twice
before the trial court Under Section-242 and 342 Cr.P.C. in both the
statements the respondent has admitted that he has issued the cheque in
favour of the appellant which was not honored by the bank on the
grounds of shortage of funda available at the credit of the respondent,
there is no justification whatever available on record to discredit these
admissions and to believe a fabricated defence story as against the said
admission. It is also stated by learned counsel for appellant that after
having issued a cheque by respondent / accused in favour of the
appellant. It is not available to the respondent to fabricate/concocted a
story in defence which is not tenable issuing of a cheque for payment
of an amount to the appellant is in itself a sufficient proof that he owed
money to the complainant which he wanted to pay through the medium
21
of the cheque. This is the essence of Section-138 of the Act. Afterissuing a cheque no defence to the effect that the drawer of the cheque
was not under obligation to draw the same is not tenable in the eyes of
law especially under Section 138 of the Act. Such defence is not
available to the respondent/accused. Law is laid down on the subject
and the same will be demonstrated at the time of arguments of the case.
He also avers that that the evidence produced by the
appellant/complainant has not been appreciated in its right perspective
which has caused great prejudice to the appellant/ complainant. The
impugned Judgment/order is bad in law, contrary to the legal norms,
contrary to evidence on record. It is being also stated that the cheque
was issued on 16.01.2015 favoring the complainant, which was
presented on the same date before the bank of encashment. Memo for
insufficiency of funds was issued on the same day. Notice was issued
through Advocate on 23.01.2015 within statutory period. The
complaint was lodged on 19.02.2015 within the statutory period and in
this way requirement under Section 138 of the Act has been perfectly
complied with.
6. The core issue that arises for consideration in this case, is whether while
recording judgment of acquittal, the complainant’s case and evidence
has been properly appreciated in its right and proper perspective. The
Trial Court has recorded entire evidence in its breadth and length in
impugned judgment as examined herein above as well. The Trial court,
as is apparent from impugned judgment, has, after taking into
consideration entire evidence adduced by complainant/appellant, come
to conclusion that evidence on the record produced by the
22
complainant/appellant is not sufficient to convince the court to hold that
the accused/respondent has taken any debt from the
complainant/appellant and in order to liquidate that debt the accused/
respondent has issued cheque which remained unpaid due to
insufficient funds. The Trial court has thus held that the complainant
has failed to prove the charge and dismissed the complaint.
7. The Trial Court discussed the provisions of Section 138 of the Act,
which provides that where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount of money
to another person from out of that account for the discharge, in whole
or in part, of any debt or other liability, is returned by the bank unpaid,
either because of the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement made
with that bank, such person shall be deemed to have committed an
offence and shall, without prejudice to any other provisions of this Act,
be punished with imprisonment for a term which may be extended to
two years, or with fine which may extend to twice the amount of the
cheque, or with both. It is, however, provided in Proviso to Section 138
that nothing contained in Section 138 shall apply unless the cheque has
been presented to the bank within a period of six months from the date
on which it is drawn or within the period of its validity, whichever is
earlier and provisions of Section 138 shall not also apply unless the
payee or the holder in due course of the cheque, as the case may be,
makes a demand for the payment of the said amount of money by giving
a notice in writing, to the drawer of the cheque, within thirty days of
23
the receipt of information by him from the bank regarding the return of
the cheque as unpaid; and that nothing contained in Section 138 shall
apply unless the drawer of such cheque fails to make the payment of
the said amount of money to the payee or, as the case may be, to the
holder in due course of the cheque, within fifteen days of the receipt of
the said notice.
8. The Trial Court found that it had been assertion of complainant/
appellant that accused/respondent owed him an amount of
Rs.5,25,000/- as respondent had taken the said amount as loan from
appellant and that in order to liquidate the said debt amount, the
respondent had issued a cheque on 16.01.2015 but the said cheque was
dishonoured by the bank on the ground of insufficient funds. In the
complaint, it is alleged by appellant that respondent had received the
amount in presence of witnesses. In his statement, the appellant has
stated before the Trial Court that he had given the money to respondent
in presence of Tanveer Ahmad, Adil Bashir and Abdul Rashid Gojri,
but appellant produced only Tanveer Ahmad as witness before the Trial
Court to reinforce his claim that he had paid Rs.5,25,000/- to
respondent. In his cross examination, the appellant has stated that he
did not remember the date on which he had given the money to the
respondent. It has rightly been said by the Trial Court that since the
appellant had advanced an amount of more than rupees five lakhs to the
accused, the appellant ought to have the knowledge of accurate date,
time and place of delivery of money. Even the complainant’s witness,
Tanveer, stated before the Trial Court that he did not remember the date
and day on which the appellant had given the cash to respondent. The
24
other two witnesses, Abdul Rashid Gojri and Adil Bashir, were not
produced by the appellant before the Trial Court. Thus, there was not
enough evidence before the Trial Court to believe that appellant had
advanced any money to the respondent as debt.
9. In the complaint it is also alleged by the appellant that that respondent
was his employee and due to employer-employee relation, the appellant
had given Rs.5,25,000/- to the respondent as debt. In his statement, the
appellant before the Trial Court stated that respondent worked as his
employee in his shop and that he did not remember for how long
respondent had worked as his employee. There is no proof with regard
to employment of the respondent. Contrary to this, the witness
produced by appellant before the Trial Court, namely, Tanveer Ahmad,
stated that he was told by appellant that respondent was his employee
and he has no personal knowledge about employment of respondent,
neither he knows him personally. One of the appellant’s witness,
namely, Faheem-u-din (Bank P.O.) stated before the Trial Court that
the account was a CC account and was a business account and that the
bank issue CC account to whom, who deals with business of any kind
and did not issue to the person who works as an employee in the
business and in fact Faayz Ahmad was running a business that is why
he was holding CC account. The statement of two witnesses, who were
bank employees, was based on record and affirms the fact that
respondent, Fayaz Ahmad, was running his own business on relevant
date. The statement of these witnesses has debilitated the claim of
appellant that respondent was his employee on the relevant point of
time. Demand notice issued by the appellant does not mention about
25
any debt having been taken by the respondent from appellant inasmuch
as the demand notice simply asks the respondent to make the payment
of cheque amount to the appellant within 15 days. The Trial Court has
found, deliberated upon and shown unambiguously the weaknesses in
the case set up by appellant in his complaint and evidence adduced by
him. In such circumstances it cannot be heard saying from the appellant
that the Trial Court has not deliberated upon and discussed all aspects
of the matter.
10.The Supreme Court’s judgement in Dattatraya vs. Sharanappa, 2024
SCC OnLine SC 1899, reinforces that merely holding a signed cheque
does not automatically constitute a legally enforceable debt. The
complainant must provide clear and consistent evidence to substantiate
his claim.
11.The well settled law is that the function of the Court in a criminal trial
is to find out whether a person arraigned before it as accused is guilty
of offence with which he is charged. For this purpose, the Court scans
the material on record to find out whether there is any credible, reliable
and trustworthy evidence on the basis of which it is possible to convict
accused and to hold that he is guilty of offence with which he is
charged. The burden to prove ingredients of the offence is always on
the complainant and it never shifts to the accused.
12.Testing prosecution case on the touchstone of evidence of witnesses, as
reproduced/discussed herein above, impugned judgment is based on the
law, reason and the logic. It does not call for any interference.
13.The argument of learned counsel for accused that there are
discrepancies in the statements of witnesses is an argument when tested
26
on the touchstone of the instant case, shows that complainant/appellant
has failed in discharging its burden to prove the contents of his
complaint. There is, thus, no merit in this appeal. It entails dismissal
and as a consequence of which the same is dismissed and the judgment
of acquittal recorded by the trial court is maintained and upheld.
14.Copy of this judgement be sent down along with the record, if any,
received.
(VINOD CHATTERJI KOUL)
JUDGE
SRINAGAR
15.07.2025
“Imtiyaz”
Whether the order is reportable: Yes/No
Imtiyaz Ul Gani
I attest to the accuracy and
authenticity of this document
17.07.2025 10:15 27
[ad_1]
Source link