Principal Commissioner of Income Tax 1 vs. Sabbineni Surendra

1 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Order Reserved on 02.08.2024 Order Delivered on 23.10.2024 ACQA No. 352 of 2019 Chakresh Jain S/o Harprasad Jain Aged About 55 Years R/o Shanti Kirana And General Store, Q.No. Ews 1/8, Kosanagar, Bhilai, Thana- Supela, Tahsil And District- Durg, Chhattisgarh., District : Durg, Chhattisgarh

...Appellant versus Harpal Singh S/o Jasvant Singh Purva Aged About 50 Years R/o Q. No. Ews 222, Near Gol Market, Vaishali Nagar, Bhilai, Tahsil And District- Durg, Chhattisgarh., District : Durg, Chhattisgarh ... Respondent ------------------------------------------------------------------------------------------------------------- For Appellant : Mr. Samir Singh, Advocate For Respondent : Mr. Virendra Verma, Advocate ------------------------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge CAV Order 1. With the consent of the learned counsel for the respective parties, the matter was heard finally. 2. The present application for leave to appeal under Section 378(4) of the Code of Criminal Procedure has been preferred by the appellant being aggrieved by the impugned judgment of acquittal dated 05.03.2019 (Annexure A/1) passed in Criminal Appeal No. 254/2018 passed by the learned First Additional Session Judge, Durg arising out of the judgment of conviction dated 29.08.2018 passed in Complaint case no. 27986/2013 passed by the learned Judicial Magistrate, First

2 Class, Durg, District-Durg(C.G.) 3. The case in nutshell is such that, before the trial Court, on behalf of the appellant (herein) Chakresh Jain complaint case was filed under Section 138 of the Negotiable Instrument Act to the effect that on the basis of their old acquaintance the accused, in need of money demanded Rs. 2,00,000/- from the complainant, on which the complainant gave Rs. 2,00,000/- to the Respondent(herein) as loan on 06.10.2012 which the respondent promised to return in six months. The respondent gave a cheque no. 575103 of UCO Bank, Bhilai to the appellant on 28.06.2013 for payment of the amount within a stipulated time period. Which when deposited in the respondent’s account, was dishonored due to the account being closed, which was informed to the respondent by the bank management. On 30.07.2013 the appellant through his lawyer sent a legal notice of dishonour of the cheque to the address of the respondent, which the respondent accepted but did not pay the amount of the cheque to the appellant. Therefore, aggrieved by the said act of the respondent, the appellant filed a complaint case under Section 138 of the Negotiable Instruments Act, requesting that an appropriate penalty be imposed on the respondent and the amount mentioned in the cheque be returned to him. 4. Learned counsel for the appellant submits that the learned trial court has recorded the evidence and after appreciating the material evidence on record held guilt of the

3 accused/respondent by proving the charges under Section 138 of the NI Act and the said finding has been reversed by the learned appellate court on some technical ground contrary of the provision of law. That the accused has admitted the transaction and said cheque has been dishonored which is proved by the petitioner through the evidence of PW-01 therefore, the presumption can be very well drawn against the accused. 5. He further contended that the appellant has clearly proved that the cheque was issued and dishonored due to account closed and merely signing the cheque knowing that the account is closed itself an offence under Section 138 of Negotiable instrument Act. That the learned appellate court had completely overlooked the material available of record and only on the presumption that the cheque was given to only for security not for any liability, passed the impugned order of acquittal which cannot be legally sustainable. Hence, prays for allowing the instant application. To substantiate his findings, he relied upon the judgment passed by the Supreme Court in the matter of Sripati Singh(single deceased) through his son Gaurav Singh Vs. the State of Jharkhand and Anr. 6. On the other hand learned counsel for the respondent opposes the prayer made by the learned counsel for the appellant and submits that the decision rendered by the Appellate court in favor of the respondent is totally legal and

4 justified . There needs no interference. Hence, the present appeal deserves to be and may be dismissed. 7. I have heard learned counsel for the respective parties at length and perused the record with utmost circumspection. 8. Learned

Appellate

court

while

acquitting

the appellant(herein) observed that if we examined the cheque in Ex.C-1 the signature of the accused in the said cheque is in ink, besides, the details of the account no. are also written in ink, whereas the name of the holder Chakresh Jain, the amount of Rs. 2,00,000/- and the date 28.06.2013 are typed on a typewriter. If the entire statement was typed and signed by the accused himself and given to the complainant, then the account no. would also have been typed instead of being written in ink, which is not shown in the present case. Consequently, it does not appear credible that the entries of the said cheque were typed by the accused himself and provided to the complainant. Rather, in the context of all the above facts, it appears highly probable that the accused had written his account no. in ink and signed blank cheque and provided the cheque to the complainant as security without mentioning the amount, date and name of the holder. Therefore, from the above discussion, the court finds that the accused, under Section 139 of the NI Act, issued the cheque in discharge of legal liability has been successful in refuting the presumption established regarding the doing of the same. Since the loan of Rs. 2Lac provided by the

5 accused to the complainant is not proved by documentary evidence and the accused has denied the presumption that the cheque in question was issued in discharging of legal liability, therefore, there is no legal evidence available against the accused for conviction under Section 138 of the Negotiable Instrument Act, due to the dishonour of the cheque in question. Hence the sentence passed by the trial court are not sustainable as they are not in accordance with law and facts. The judgment and order passed by the learned trial court of 28.08.2018 was set aside. Accused was acquitted of the charges under section 138 of the NI Act. 9. While disposing the present appeal, this court observed that the appellant has produced witness no. 1 Purushotta, Senior Manager, UCO Bank, who has stated that the cheque in question was issued by UCO Bank on 06.10.2004 and the account was closed on 10.08.2005 but has expressed his inability to explain how the said account was closed due to lack of any document. In cross-examination the witness has admitted that account no. belongs to Harpal Singh. He has also admitted that according to the memorandum of Ex. C- 03 the reason for dishonor of the cheque is stated to be closure of the said account. 10. In cross-examination the witness has stated that the cheque of Ex.C-01 was typed by the accused himself and was given on 28.06.2013. It is accepted that the said cheque is very old. He was not asked the reason for giving the old cheque,

6 it is denied that the cheque of Ex. C-01 was given by the accused 10 years ago. Further, during cross-examination, the witness has stated that he has previous dealings with the accused and the accused had earlier also taken three to four lakh rupess in installments of ten thousand, twenty thousand each, which he had returned. It is accepted that he has not given details in his income tax return regarding giving of Rs. 2 lac, to the accused. It is denied that he got the cheque of Ex. C-01 typed by some other person. It is accepted that the amount of loan taken earlier was returned by paying cash. The accused had given him the cheque in question for the first time. He himself stated that even after this accused had given him a cheque of Rs. 2,000/- whose entries were filled by typing and which was paid. It is denied that at the time of giving money to the accused, he had received a blank cheque as security. It is denied that the said blank cheque was given 10 years ago. 11. Taking into consideration the findings recorded by the learned Appellate Court, acquitting the respondent from aforesaid offences, I do not find any reason to allow appeal. 12. Recently, applying the law governing the scope of interference in an appeal against acquittal, the Hon’ble Supreme Court in the case of “State of Rajasthan Vs. Kistoora Ram” reported in 2022 SCC Online SC 984, has held as follows:- “8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by

7 the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interfere would be warranted only if the view taken is not possible at all.” 13. Accordingly, the present Appeal is dismissed and is consequently disposed of . sd/- (Arvind Kumar Verma) Judge alfiza