Chattisgarh High Court
Moh. Iftekhar Raza vs Ratnesh Jain on 12 March, 2025
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
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2025:CGHC:12229
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 284 of 2024
Order Reserved on : 05.12.2024
Order Delivered on : 12.03.2025
Moh. Iftekhar Raza S/o Shri Haji Mohammad Ayub Aged About 44
Years R/o Chameli Chowk, Dhamtari, Tahsil And Dist - Dhamtari,
Chhattisgarh. (Complainant)
... Appellant
versus
Ratnesh Jain S/o Late Basantal Jain Aged About 60 Years R/o
Ratnabandha Road, Dak Banglwa Ward, Dhmatari, Dist - Dhamtari,
Chhattisgarh.
... Respondent
For Appellant : Mr. Akhtar Hussain, Advocate
For Respondent : Mr. Hemant Kumar Agrawal, Advocate
Hon'ble Shri Justice Narendra Kumar Vyas
(CAV Judgment)
1. The appellant has filed the present acquittal appeal under Section
378(4) of the Code of Criminal Procedure, 1973 against the order
dated 18.03.2024 (Annexure A/1) passed by the learned Judicial
Magistrate First Class Dhamtari, District – Dhamtari (C.G.) in
Complaint Case No. 98/2021 by which the learned trial Court has
dismissed the complaint case filed under Section 138 of
Negotiable Instrument Act, 1881 and acquitted the
respondent/accused from the charges.
Digitally
signed by
MANISH
MANISH YADAV
YADAV Date:
2025.03.12
12:16:22
+0530
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2. Brief facts of the case are that the complainant filed a complaint
under Section 138 of Negotiable Instruments Act, 1881 which is
registered as Complaint Case No. 98/2021 mainly contending that:
a. An agreement was executed between the complainant and
accused for sale of land bearing its Khasra No. 1284/3 area
0.405 situated at Patwari Halka No. – 31 of village – Soridbhat,
District Dhatmari (C.G.). The accused for discharge of liability
has given a cheque bearing No. 000017 dated 30.06.2020
amounting to Rs. 30,00,000/- (thirty lakh) of the Bank wherein
the accused is maintaining his account i.e. Bandhan Bank,
Branch Dhamtari (C.G.). The complainant has presented the
said cheque before the Bandhan Bank, Branch Dhamtari in his
account number 50170006170859 on 25.09.2020, but the same
was dishonored with an endorsement “due to insufficient fund”.
The cheque was received by the complainant from the bank
alongwith his forwarding memo, thereafter, the complainant has
sent a legal notice on 07.10.2020 to the respondent and the
same has been received by respondent/accused on
08.10.2020, but the accused failed to pay the amount within
time period as prescribed under the Negotiable Instruments Act,
thereafter the complainant has filed the complaint under
Section 138 of Negotiable Instruments Act, 1881.
b. The complainant to substantiate his case has exhibited
documents: Cheque (Exhibit P/1), Bank Deposit Form (Exhibit
P/2), Return Memo (Exhibit P/3), Registered Notice (Exhibit
P/4), Postal Receipt (Exhibit P/5) and Closed Envelope (Exhibit
P/6). The complainant examined himself by way of an affidavit
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as required under Section 145 of Negotiable Instruments Act,
1881 reiterating the contention raised in the complaint. The
witness was cross-examined wherein he has admitted that he
has not submitted any document with regard to transaction
pertaining to land. He has also stated that he has sent a notice
to the accused and the post office persons have informed him
with regard to the position of service of notice and voluntarily
stated that accused has informed him about notice. The witness
has denied that no payment has been given to the accused and
also denied that he has submitted a false complaint.
3. The accused has not examined any witness but his statement
under Section 313 Cr.P.C. was recorded wherein he pleaded false
implication and has stated that he never gave any cheque to the
complainant. He has also stated that no legal notice was received
by him. The learned vide impugned judgment dated 18.03.2014
has dismissed the complaint and acquitted the accused. Being
aggrieved with this judgment of acquittal the appellant has filed this
acquittal appeal.
4. The learned counsel for the appellant would submit that the
learned trial Court has committed illegality in discharging the
accused on the count that the complainant is unable to prove that
cheque was given towards any debt or liability. In fact, the
complainant in clear terms have proved that cheque was given
towards transaction of land, as such, presumption should have
been drawn in favour of the complainant under Section 139 of N.I.
Act, 1881. He would further submit that once the complainant has
proved that the cheque was given towards debt or liability then
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burden lies on the accused to rebut the same by evidence on
probabilities which he utterly failed to do as no evidence to this
effect was led by the accused. He would further submit that the
statement under Section 313 of Cr.P.C. only clarifies the
circumstances against the accused which cannot be said to
discharge of burden or rebuttal of presumption. Thus, he would
pray for allowing the appeal. In the appeal for the first time the
appellant has filed copy of the agreement executed between the
complainant and the accused as (annexure A/4) dated 20.05.2020
and statement of account maintained by the complainant wherein
a withdrawal of Rs. 25,00,000/- has been shown by Ratnesh Jain
to substantiate that the cheque was given towards debt or liability.
5. Per contra learned counsel for the respondent would submit that
since the complainant has not proved that the cheque was given
towards any liability which is paramount consideration for attracting
the offence under Section 138 of N.I. Act as such, the trial Court
has recorded the finding which cannot be said to suffer from
perversity or illegality which warrants interference. He would
further submit that the appellant to fill up the lacuna has filed the
copy of the alleged agreement as well as statement of account
which is not permissible in view of well settled legal position that
additional evidence cannot be permitted when it would amount to
filling of glaring lacuna in the case. To substantiate his contention
he has referred to the judgment of Hon’ble Supreme Court in case
of H.N. Jagdish vs. R. Rajeshwari reported in 2019 (16 ) SCC
730. He would further submit that the complainant has not placed
any material on record to prove that the cheque was given towards
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liability, as such also the finding recorded by the trial Court is legal
and justified which does not warrant interference and would pray
for dismissal of the appeal. To substantiate this submission he has
referred to the judgment of the Hon’ble Supreme Court in case of
B. Krishna Reddy Vs. Syed Hafeez (Died) Per Legal
Representative Naseema Begum and Another reported in 2020
(17) SCC 488, Basalingappa vs. Mudibasappa reported in 2019
(5) SCC 418, John K. Abraham vs. Simon C. Abraham and
Another reported in 2014 (2) SCC 236, K. Subramani vs. K.
Damodara Naidu reported in 2015 (1) SCC 99 and Dattatraya vs.
Sharanappa reported in 2024 (8) SCC 573.
6. Now this Court has to consider whether agreement dated
20.05.2020 and the statement of bank account can be taken into
consideration to record a finding whether cheque was given
towards any debt or liability or not.
7. The learned counsel for the respondent vehemently objected for
considering these documents and would submit that these
document cannot be considered as it will amount to filling of the
lacuna by additional evidence in light of judgment passed by the
Hon’ble Supreme Court in case of Jagdish (Supra). This
submission deserves to be rejected as the facts of the case of
Jagdish (Supra) are distinguishable on the facts that in that case
the notice under Section 138 of N.I. Act was not placed on record
which is necessary precondition for filing of complaint under
Section 138 of the N.I. Act, therefore, it was incumbent upon the
complainant to prove the same, as such the said notice is allowed
to be taken on record then it was held that it is a filling of the
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lacuna and accordingly, it was not allowed whereas in the present
case though the agreement was not placed on record, but the oral
evidence with regard to transaction of land and transfer of money
are already on record of the trial Court, as such the oral evidence
and notice under Section 138 of N.I. Act or other documents with
regard to dishonor of cheque was available on record. There was
some oral evidence with regard to liability of the accused, but
documentary evidence was not available with the trial Court, as
such, if this document is taken on record, it will not amount to filling
of the glaring lacuna, it may be merely irregularity which may be
curable. Even otherwise, the respondent in this appeal has also
placed on record the copy of the complaint dated 04.12.2024
wherein he has mentioned about alleged fraud in preparation of
the agreement, thus, there is a dispute with regard to existence of
an agreement which is now required to be ascertained by the
Court. Similarly, the statement of account of the complainant has
been placed on record wherein withdrawal of Rs. 25 Lakhs has
been shown in the name of Ratnesh Jain accused, but the said
document has not been placed before the trial Court though the
complainant in his cross-examination before the trial Court has
clearly stated that the statement of bank account is available with
him.
8. The Hon’ble Supreme Court in case of Zahira Habibullah H.
Sheikh and another vs. State of Gujarat and Others reported in
2004 (4) SCC 158 has considered the provisions of Section 391 of
the Cr.P.C. which permits the appellate Court to take further
evidence. The Hon’ble Supreme Court in paragraph 21 has held
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as under:-
“21. Section 391 of the Code is intended to sub-serve the
ends of justice by arriving at the truth and there is no
question of filling of any lacuna in the case on hand. The
provision though a discretionary one is hedged with the
condition about the requirement to record reasons. All these
aspects have been lost sight of and the judgment, therefore,
is indefensible. It was submitted that this is a fit case where
the prayer for retrial as a sequel to acceptance of additional
evidence should be directed. Though, the re-trial is not the
only result flowing from acceptance of additional evidence,
in view of the peculiar circumstances of the case, the proper
course would be to direct acceptance of additional evidence
and in the fitness of things also order for a re-trial on the
basis of the additional evidence.”
9. Again the Hon’ble Supreme Court in case of Ajitsinh Chehuji
Rathod vs. State of Gujarat & Another reported in 2024 INSC 63
in paragraph 9 has held as under:-
“9. At the outset, we may note that the law is well-settled by
a catena of judgments rendered by this Court that power to
record additional evidence under Section 391 CrPC should
only be exercised when the party making such request was
prevented from presenting the evidence in the trial despite
due diligence being exercised or that the facts giving rise to
such prayer came to light at a later stage during pendency
of the appeal and that non- recording of such evidence may
lead to failure of justice.”
10. From the abovestated legal position and considering the fact that
oral evidence with regard to the transaction relating to land has
already been placed on record and in the appeal the respondent
has also filed a copy of complaint dated 04.12.2024 to the Police
Station regarding alleged fraud committed in execution of the
alleged agreement. The complainant has also submitted copy of
the bank account wherein the name of respondent accused has
been mentioned, as such these documents are necessary for just
and proper adjudication of the case and non-consideration of such
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additional evidence leads to failure of justice, therefore, I am of the
view that the document agreement dated 20.05.2020 and
complaint filed by the respondent dated 04.12.2024 as well as the
statement of bank account are taken on record of the trial Court
and the matter is remitted back to the trial Court for deciding the
matter afresh by considering the agreement, the complaint made
by the respondent, the bank account and all other documents
already available on record in accordance with law. Consequently
the impugned judgment deserves to be quashed and accordingly,
it is quashed.
11. It is made clear that the trial Court will decide the case after taking
the document on record in accordance with law afresh after giving
opportunity of hearing to all the parties to examine their evidence
and to prove their case.
12. A copy of the order be forwarded to the Judicial Magistrate First
Class to take a decision in accordance with law. Since the parties
have already entered appearance before this Court, no notice is
required to be issued to them. Both parties are directed to appear
before the trial Court on 28th April, 2025.
13. With aforesaid observation and direction, present acquittal appeal
is allowed.
Sd/-
(Narendra Kumar Vyas)
Judge
Manish