PRINCIPAL COMMISSIONER OF INCOME TAX vs. M/S SILVER AND ARTS PALACE

1 AFR HIGH COURT OF CHHATTISGARH, BILASPUR ACQA No. 248 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal, Aged 54 Years Proprietor Dinesh Enterprises, R/o- E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk, Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 93 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Petitioner Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 94 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 96 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station-

2 Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 97 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 98 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 99 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh ---- Appellant Versus Smt. Jaishri Agrawal, W/o Dinesh Kumar Agrawal, Proprietor- Jaishri Minerals And Chemicals, R/o- E-424, Behind Goyal Nursing Home,

3 Radhakrishna Mandir Road, Samta Colony, Raipur, P.S. Azad Chowk, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 100 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 101 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 102 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 103 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39

4 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 104 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 105 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 106 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years

5 Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 107 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 109 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 110 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 111 of 2019

6 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 112 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 113 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 114 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus

7 Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 115 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 116 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 117 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 118 of 2019

8 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 119 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 120 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 122 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus

9 Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 123 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 124 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 125 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 126 of 2019

10 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 127 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 128 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 129 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus

11 Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 130 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 131 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 134 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 135 of 2019

12 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 137 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 138 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 139 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus

13 Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 145 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 258 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent ACQA No. 263 of 2019 Suresh Kumar Mahapatra S/o Late Goverdhan Mahapatra Aged About 39 Years R/o Shivananad Nagar, Sector 3, Kargil Chowk, Police Station- Khamtarai, District- Raipur, Chhattisgarh. ---- Appellant Versus Dinesh Agrawal S/o Late Kishan Lal Agrawal Aged About 54 Years Proprietor - Dinesh Enterprises, R/o E-424, Behind Goyal Nursing Home, Raadhakrishna Mandir Road, Samta Colony, Police Station- Azad Chowk Raipur, District- Raipur, Chhattisgarh. ---- Respondent (Cause-Title taken from the Case Information System)

14 ------------------------------------------------------------------------------------------------ For Appellant : Mr. Virendra Verma, Advocate. For Respondent : Mr. D.K. Gwalre, Advocate. ------------------------------------------------------------------------------------------------ Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 15.03.2024 1. This petition is filed under Section 378 (8) of the Code of Criminal procedure being aggrieved by the impugned judgment and order dated 29.05.2018 passed by the Court of learned Judicial Magistrate First Class, Raipur C.G. in Criminal Case Nos. 811/2016, 790/2016, 1414/2016, 840/2016, 796/2016, 807/2016, 1432/2016,1415/2016, 1417/2016, 1418/2016, 785/2016, 800/2016, 787/2016, 799/2016, 1416/2016, 810/2016, 792/2016, 791/2016, 798/2016, 806/2016, 797/2016, 1413/2016, 839/2016, 778/2016, 1020/2016, 781/2016, 782/2016, 809/2016, 795/2016, 1412/2016, 1019/2016, 794/2016, 808/2016, 780/2016,1017/2016, 1021/2016, 1022/2016, 793/2016, 801/2016, 786/2016, 1018/2016, 838/2016, 784/2016, 783/2016, 779/2016 whereby the trial Court has acquitted the Respondent for the offence under Section 138 of the Negotiable Instrument Act, 1881 and since common question of fact and law is involved in all the appeals which have been heard together and are being disposed of by this common judgment. 2. Brief facts of the case are that as per the complaint, the appellant is doing a business as a financer and the respondent is doing a

15 business in the name of Dinesh Enterprises and he is the proprietor thereof. The respondent took loan of Rs.1,00,000 in the complaint case No.811/2016, Rs.9,50,000 in the complaint case No.790/2016, Rs. 1,00,000 in the complaint case No.1414/2016, Rs.1,00,000 in the complaint case No.840/2016, Rs.6,00,000 in the complaint case No.796/2016, Rs.2,00,000 in the complaint case No.807/2016, Rs.4,00,000 in the complaint case No.1432/2016, Rs.3,00,000 in the complaint case No.1415/2016, Rs.2,00,000 in the complaint case No.1417/2016, Rs.1,00,000 in the complaint case No.1418/2016, Rs.1,00,000 in the complaint case No.785/2016, Rs.1,00,000 in the complaint case No.800/2016, Rs.1,00,000 in the complaint case No.787/2016, Rs.1,00,000 in the complaint case No.799/2016, Rs.1,00,000 in the complaint case No.1416/2016, Rs.1,00,000 in the complaint case No.810/2016, Rs.2,40,000 in the complaint case No.792/2016, Rs.1,50,000 in the complaint case No.791/2016, Rs.6,00,000 in the complaint case No.798/2016, Rs.50,000 in the complaint case No.806/2016, Rs.2,00,000 in the complaint case No.797/2016, Rs.2,00,000 in the complaint case No.1413/2016, Rs.50,000 in the complaint case No.839/2016, Rs.1,90,000 in the complaint case No.778/2016, Rs.1,00,000 in the complaint case No.1020/2016, Rs.3,00,000 in the complaint case No.781/2016, Rs.2,00,000 in the complaint case No.782/2016, Rs.1,00,000 in the complaint case No.809/2016, Rs.1,00,000 in the complaint case No.795/2016, Rs.1,00,000 in the complaint case No.1412/2016, Rs.90,000 in the complaint case No.1019/2016,

16 Rs.1,00,000 in the complaint case No.794/2016, Rs.1,00,000 in the complaint case No.808/2016, Rs.2,00,000 in the complaint case No.780/2016, Rs.1,00,000 in the complaint case No.1017/2016, Rs.1,00,000 in the complaint case No.1021/2016, Rs.1,00,000 in the complaint case No.1022/2016, Rs.5,00,000 in the complaint case No.793/2016, Rs.1,00,000 in the complaint case No.801/2016, Rs.6,00,000 in the complaint case No.786/2016, Rs.1,00,000 in the complaint case No.1018/2016, Rs.1,00,000 in the complaint case No.838/2016, Rs.1,80,000 in the complaint case No.784/2016, Rs.1,00,000 in the complaint case No.783/2016, Rs.5,00,000 in the complaint case No.779/2016 for his business purpose and handed over the cheques of the same amount in favour of the appellant. The cheques were presented in the bank for encashment which was returned by the bank with a remark “dishonored due to insufficient funds”. Thereafter, the appellant served a notice by the registered post to the respondent but despite the notice, the amount was refunded. The appellant filed complaint under Section 138 of the NI Act against the respondent. After trial the trial Court held that the cheque was issued by the respondent in advance as a security, hence, Section 138 of the N.I. Act does not apply. 3. The trial Court also held that the return of dishonored cheques has not been proved, the service of notice as required under the proviso Clause- (B) of Section 138 of the N.I. Act, on these findings the respondent was held not guilty and acquitted accordingly. 4. In support of his case, the appellant placed on records documents in

17 the form of disputed cheques (Exhibit- A/1), Postal acknowledgment and return of check memo. The appellant also filed application under Section 391 of the Criminal Procedure Code for taking documents in the appellate Court at appellate stage and as per submission of appellant/complainant, that he has adduced evidence in the trial Court regarding service of notice, but unfortunately due to inadvertence could not prove the copy of the notice sent and the reply was also filed by the respondent. Therefore, appellant has filed copies of notices served and its reply herewith as Annexure A/2 & A/3 respectively. Section 391 of the Cr.P.C. provides as under:- “391. Appellate Court may take further evidence or direct it to be taken.— (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.”

18 5. In this case, more than sufficient time and opportunity of hearing has been provided by the trial Court to both the parties, but the appellant has failed to produce the service of notice to the respondent. The only ground raised by the appellant in his application under Section 391 of the Criminal Procedure Code is, due to inadvertence he could not prove the service of notice and reply to the notice. But, this is not a sufficient ground he has raised. In his ragard the counsel for the respondent also relied upon the case of Shiva Balak Rai And Ors. vs State Of Bihar 1986 CRI. L. J. 1727 , wherein the Hon’ble High Court of Patna in para 13 has held as under:- “13. The language of the section does not put any restriction on the power of the Court. But it is for the appellate Court to decide whether in the interest of justice it is "necessary" to allow any partly to give additional evidence. The word "necessary" has not been used in the section to mean that this power should be exercised when it is impossible to pronounce judgment. The reception of additional evidence may be allowed when there is likelihood of failure of justice without it. It is an exception to the general rule and the power conferred by this provision must be exercised with great care, so that the reception of the additional evidence for the prosecution may not operate in any manner prejudicial to the defence of the accused. Under the garb of the pro-vision of this section, the prosecution cannot be allowed to fill up the lacuna in the prosecution evidence. Where only formal proof of a document is necessary, the appellate Court would

19 be perfectly justified in admitting the additional evidence. Likewise, if the evidence which is necessary for a just decision of the case, was erroneously rejected by the trial Court or such evidence was not within the knowledge of the parties earlier, the appellate Court may exercise the power. The abovementioned instances are only illustrative and not exhaustive. The necessity for taking additional evidence under this section has to be determined on the particular facts of each case. Ordinarily, it should not be allowed if the prosecution fails to avail the opportunity given to it by the trial Court for producing such evidence. Similar view has been expressed in the case of Rajeshwar Prasad Misra v. State of West Bengal AIR 1965 SC 1887 : (1965(2) Cri LJ 817) it has been held that the order for reception of additional evidence, usually, must not be made if the prosecution has had a fair opportunity and did not avail of it unless the requirements of justice dictate otherwise.” 6. The appellant/complainant had evey opportunity to bring on record the desirable evidences, but he has failed to do so. Therefore, it appears that the application under Section 391 of Cr.P.C. filed by the appellant is just an attempt to fill up the lacunas in the prosecution case, which is not permissible. In this regard, in case of Rambhau vs. State of Maharashtra (2001) 4 SCC 759 : 2001 SCC (Cri) 812 the Hon’ble Supreme Court, in paras 2, 3 and 4 has held as under:-

20 “2. A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a re-trial or to change the nature of the case against the accused. This Court in the case of Rajeswar Prasad Misra v. State of West Bengal and another (AIR 1965 SC 1887) in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. 3. Be it noted that no set of principles can be set forth for such an exercise of power under Section 391, since the same is dependant upon the fact- situation of the matter and having due regard to the concept of fair play and justice, well being of the society. 4. Incidentally, Section 391 forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna

21 but to sub-serve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41 Rule 27 of the Civil Procedure Code.” 7. Thus, without any sufficient cause, the application under Section 391 of Cr.P.C. cannot be allowed, hence, the same is liable to be and rejected at this stage. 8. The learned counsel for the appellant vehemently argued that the impugned judgment is bad in law and on facts as well. The finding given by the trial Court to the effect that the return of dishonored cheques is not proved is perverse. It is submitted that the same was proved by the endorsement of the Bank on challenged statement of the appellant/complainant on the point and the totality of the circumstances. It is also submitted that the trial Court has wrongly held that the service of notice was not proved. It is further submitted that the trial Court also wrongly held that the cheque was given not for discharge of liability instead it was given for security, and therefore, under the said circumstances the impugned judgment is liable to be reversed, the respondent is liable to be held guilty, and conviction of offence charged and consequently liable to be punished adequately. He also relied upon the case of Guneet Bhasin V/s State Of NCT Of Delhi & Anr & Ors. 2021 (SC) 677 whereby the Hon’ble High Court of Delhi in para-9 has observed as under:

22 “[9] The cheque return memo is a memo informing the payee’s banker and the payee about the dishonour of a cheque. When the cheque is dishonoured, the drawee bank immediately issues a cheque return memo to the payee’s banker mentioning the reason for non-payment. The purpose of the cheque return memo is to give the information of the holder of the cheque that his cheque on presentation could not be encashed due to the variety of reasons as mentioned in the cheque return memo. As per the section 146 of the NI act, the cheque return memo on presentation presumed the fact of dishonour of the cheque unless and until such fact is disapproved. Neither section 138 nor the section 146 of the NI act has prescribed any particular form of cheque return memo. The section 138 of the NI Act does not mandate any particular form of cheque return memo which is nothing but a mere information given by the Banker of the due holder of a cheque that the cheque has been returned as unpaid. If the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque return memo as invalid or illegal. The cheque return memo is not a document which is not required to be covered under section 4 of the Bankers Book (Evidence) Act, 1891. If there is any infirmity in the cheque return memo, it does not render entire trial under section 138 of the NI Act as nullity.”

23 9. Section 146 of the NI Act precribed as under: “146. Bank’s slip prima facie evidence of certain facts.— The Court shall, in respect of every proceeding under this Chapter, on production of bank’s slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.” 10. On bare perusal of Section 146 of the NI Act, it states that the stamp of the Bank should be officially marked in the cheque return memo, for sake of argument if accepting the submission of appellant that the cheque return memo is a mere information given by the banker to the due holder of the cheque, in those circumstances, it was also important to give the notice to the respondent by the complainant, but no any legal notice was given to the respondent nor was it filed before the trial Court through the complainant/appellant. The appellant only filed acknowledgment/receipt of registered post which is not sufficient and it is not presumed that the notice was given by the appellant to the respondent for demanding his money. 11. The appellant also filed the case law of Shripati Singh V/s State of Jharkhand 2022 (Del) 2913 whereby the learned Supreme Court in para 16 has held as under: 16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. ‘Security’ in its true sense is the state of being safe

24 and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow. 12. Per contra, the learned counsel for the respondent submitted that if reasonable conclusions can be read on the basis of the evidence on record, the appellate Court should not disturb the finding of the trial Court. The reliance placed on record by the counsel for the respondent to the judgment in Case of C. Antony v. K.G. Raghavan Nair (2003) 1 SCC 1: 2003 SCC (Cri) 161 whereby the Hon’ble Supreme Court has observed as under: “ 6. This Court in a number of cases has held that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider

25 every matter on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of acquittal, it must express its reasons in the judgment which led it to hold that the acquittal is not justified. In those line of cases this Court has also held that the appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court. [See Bhim Singh Rup Singh v. State of Maharashtra1 and Dharamdeo Singh v. State of Bihar.)” 13. The learned counsel for the appellant has also relied upon the judgment in the case of K. Prakashan v. P.K. Surenderan (2008) 1 SCC 258:(2008) 1 SCC (Cri) 200 whereby the Hon’ble Supreme Court has observed as under: “15. The learned trial Judge had passed a detailed judgment upon analysing the evidence brought on record by the parties in their entirety. The criminal court while appreciating the evidence brought on record may have to weigh the entire pros and cons of the matter which would include the circumstances which have been brought on record by the parties. The complainant has been found to be not a man of means. He had allegedly advanced a sum of Rs 1 lakh on 13-1-1994. He although had himself been taking advances either from his father or brother or third parties, without making any attempt to realise the amount, is said to have

26 advanced sum of Rs 86,000 on 8-6-1994. Likewise he continued to advance diverse sums of Rs 28,000, Rs 50,000, Rs 40,000 and Rs 12,000 on subsequent dates. It is not a case where the appellant paid any amount to the respondent towards repayment of loan. He even did not charge any interest. He had also not proved that there had been any commercial or business transactions between himself and the appellant. Why the appellant required so much amount and why he alone had been making payments of such large sums of money to the appellant has not been disclosed. According to him, he had been maintaining a diary. A contemporaneous document which was in existence as per the admission of the complainant, therefore, was required to be brought on record. He failed to do so. He also did not examine his father and brothers to show that they were men of means and in fact advanced a huge sum to him only for the purpose of grant of loan by him to the appellant. The learned trial court not only recorded the inconsistent stand taken by the complainant in regard to the persons from whom he had allegedly borrowed the amount, ********** 22. It is now trite that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate court's jurisdiction to interfere is limited. (See M.S. Narayana Menon¹ and Mahadeo Laxman Sarane v. State of Maharashtra.) The High Court furthermore has not met the reasons of the learned trial Judge. It proceeded on the premise that the appellant had not been able to discharge his burden of proof in terms of Section 139 of the Act

27 without posing unto itself a further question as to how the said burden of proof can be discharged. It furthermore did not take into consideration the legal principle that the standard of proof upon a prosecution and upon an accused is different.” 14. It is submitted by the learned counsel for the respondent that the trial Court has given proper and sufficient opportunity to the appellant to adduce evidence and prove his case. But, the appellant did not produce any document regarding service of notice and the appellant tried to fulfill the lacunas at appellate stage. 15. The learned counsel for the respondent also relied upon the judgment of the Hon’ble Supreme Court in the case of Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal (1999) 3 SCC 35: AIR 1999 SC 1008 whereby in para 12 the Hon’ble Supreme Court has held as under: "12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff

28 who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and the Andhra Pradesh High Court in this

29 regard." 16. The learned counsel for the respondent also relied upon the judgment passed by the Hon’ble Supreme Court in the case of K. Prakashan v. P.K. Surenderan (2008) 1 SCC 258: (2008) 1 SCC (Cri) 200 whereby in para 13 and 14 the Hon’ble Supreme Court has held as under:

"13. The Act raises two presumptions: firstly, in regard to the passing of consideration as contained in Section 118(a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118(a) and 139 are rebuttable in nature. Having regard to the definition of terms "proved" and "disproved" as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis-à-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision. 14. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability." 17. The learned counsel for the respondent also relied upon the

30 judgment of the Hon’ble Supreme Court in the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54: (2008) 2 SCC (Cri) 166 whereby in para 30 and 44 the Hon’ble Supreme Court has held as under: “30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. 44. The presumption of innocence is a human right. (See Narendra Singh v. State of M.P., Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Rajesh Ranjan Yadav v. CBI.) Article 6(2) of the European Convention on Human Rights provides: "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused's rights and the interest of the society is required to be taken into consideration. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned

31 purpose the nature of the offence, seriousness as also gravity thereof may be taken into consideration. The courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. It is for the aforementioned reasons that we have taken into consideration the decisions operating in the field where the difficulty of proving a negative has been emphasised. It is not suggested that a negative 66 can never be proved but there are cases where such difficulties are faced by the accused e.g. honest and reasonable mistake of fact. In a recent article The Presumption of Innocence and Reverse Burdens: A Balancing Duty published in 2007 CLJ (March Part) 142 it has been stated: "In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice- where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment."

32 18. From the perusal of the records it transpires that the complainant/appellant has advanced total Rs.92 Lakhs and has showed his Income Tax Return but has not produced any document sustaining the same. His annual income is only about Rs. 6 Lakhs, and the complainant/appellant has failed to establish that he was capable to advance a total of Rs. 92 Lakhs. 19. The learned counsel for the respondent also relied upon the judgment of the Hon’ble Supreme Court in the case of John K. John v. Tom Varghese (2007) 12 SCC 714: (2008) 3 SCC (Cri) 374 whereby in para 11 the Hon’ble Supreme Court has held as under: “11. ** The High Court upon analysing the materials brought on record by the parties had arrived at a finding of fact that in view of the conduct of the parties it would not be prudent to hold that the respondent borrowed a huge sum despite the fact that the suits had already been filed against him by the appellant. Presumption raised in terms of Section 139 of the Act is rebuttable. If, upon analysis of the evidence brought on record by the parties, in a fact situation obtaining in the instant case, a finding of fact has been arrived at by the High Court that the cheques had not been issued by the respondent in discharge of any debt, in our opinion, the view of the High Court cannot be said to be perverse warranting interference by us in exercise of our discretionary jurisdiction under Article 136 of the Constitution. The High Court was entitled to take notice of the conduct

33 of the parties. It has been found by the High Court as of fact that the complainant did not approach the Court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only had no document been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent was not even in a position to discharge his burden to pay instalments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken.” 20. The learned counsel for the respondent also relied upon the judgment of the Hon’ble Supreme Court in the case of John K. Abraham v. Simon C. Abraham (2014) 2 SCC 236: (2014) 1 SCC (Cri) 791 whereby in paras 6, 7, and 9 the Hon’ble Supreme Court has held as under: “6. When we examine the case of the respondent complainant as projected before the learned Chief Judicial Magistrate and the material evidence placed before the trial court, we find that the trial court had

34 noted certain vital defects in the case of the respondent complainant. Such defects noted by the learned Chief Judicial Magistrate were as under: 6.1. Though the respondent as PW 1 deposed that the accused. received the money at his house also stated that he did not remember the date when the said sum of Rs 1,50,000 was paid to him. 6.2. As regards the source for advancing the sum of Rs. 1,50,000, the respondent claimed that the same was from and out of the sale consideration of his share in the family property, apart from a sum of Rs 50,000, which he availed by way of loan from the co-operative society of the college where he was employed. Though the respondent stated before the court below that he would be in a position to produce the documents in support of the said stand, it was noted that no documents were placed before the court below. 6.3. In the course of cross-examination, the respondent stated that the cheque was signed on the date when the payment was made, nevertheless he stated that he was not aware of the date when he paid the sum of Rs 1,50,000. 6.4. According to the respondent, the cheque was in the

35 handwriting of the accused himself and the very next moment he made a contradictory statement that the cheque was not in the handwriting of the appellant and that he (complainant) wrote the same. 6.5. The respondent also stated that the amount in words was written by him. 6.6. The trial court has also noted that it was not the case of the respondent that the writing in the cheque and filling up of the figures were with the consent of the appellant-accused. 7. In the light of the above evidence, which was lacking in very many material particulars, apart from the contradictions therein, the trial court held that the appellant was not guilty of the offence alleged against under Section 138 of the Negotiable Instruments Act and acquitted him. 9. It has to be stated that in order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.”

36 21. The learned counsel for the respondent also relied upon the judgment of the Hon’ble Supreme Court in the case of K. Subramani v. K. Damodara Naidu (2015) 1 SCC 99: (2015) 1 SCC (Cri) 576 whereby in para 9 the Hon’ble Supreme Court has held as under: “9. In the present case the complainant and the accused were working as Lecturers in a government college at the relevant time and the alleged loan of Rs 14 lakhs is claimed to have been paid by cash and it is disputed. Both of them were governed by the Government Servants' Conduct Rules which prescribes the mode of lending and borrowing. There is nothing on record to show that the prescribed mode was followed. The source claimed by the complainant is savings from his salary and an amount of Rs 5 lakhs derived by him from sale of Site No. 45 belonging to him. Neither in the complaint nor in the chief-examination of the complainant, is there any averment with regard to the sale price of Site No. 45. The sale deed concerned was also not produced. Though the complainant was an income tax assessee he had admitted in his evidence that he had not shown the sale of Site No. 45 in his income tax return. On the contrary the complainant has admitted in his evidence that in the year 1997 he had obtained a loan of Rs 1,49,205 from LIC. It is pertinent to note that the alleged loan of Rs 14 lakhs is claimed to have been disbursed in the year 1997 to the accused. Further the complainant did not

37 produce bank statement to substantiate his claim. The trial court took into account the testimony of the wife of the complainant in another criminal case arising under Section 138 of the NI Act in which she has stated that the present appellant-accused had not taken any loan from her husband. On a consideration of entire oral and documentary evidence the trial court came to the conclusion that the complainant had no source of income to lend a sum of Rs 14 lakhs to the accused and he failed to prove that there is legally recoverable debt payable by the accused to him.”

38 construction. Proviso appended to Section 138 contains a non obstante clause. It provides that nothing contained in the main provision shall apply unless the requirements prescribed therein are complied with. Service of notice is one of the statutory requirements for initiation of a criminal proceeding. Such notice is required to be given within 30 days of the receipt of the information by the complainant from the bank regarding the cheque as unpaid. Clause (c) provides that the holder of the cheque must be given an opportunity to pay the amount in question within 15 days of the receipt of the said notice. Complaint petition, thus, can be filed for commission of an offence by a drawee of a cheque only 15 days after service of the notice. What are the requirements of service of a notice is no longer res integra in view of the recent decision of this Court in C. C. Alavi Hajiv. Palapetty Muhammed.. 18. The notice was only required to be dispatched. Its contents were required to be communicated. Communication to the appellant about the fact of dishonouring of the cheques and calling upon him to pay the amount within 15 days is imperative in character. It is not a case, where, actual communication was not necessary. Service of notice is a part of cause of action for lodging the complaint.” 23. Regarding to the above, the served investigation in the case of Rahul Builders v. Arihant Fertilizers & Chemicals (2008) 2 SCC 321: (2008) 1 SCC (Cri) 703 whereby in para 10, the Hon’ble Supreme Court has held as under:

39 10. Service of a notice, it is trite, is imperative in character for maintaining a complaint. It creates a legal fiction. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main section would not. Unless a notice is served in conformity with proviso (b) appended to Section 138 of the Act, the complaint petition would not be maintainable. Parliament while enacting the said provision consciously imposed certain conditions. One of the conditions was service of a notice making demand of the payment of the amount of cheque as is evident from the use of the phraseology "payment of the said amount of money". Such a notice has to be issued within a period of 30 (sic 15) days from the date of receipt of information from the bank in regard to the return of the cheque as unpaid. The statute envisages application of the penal provisions. A penal provision should be construed strictly; the condition precedent wherefor is service of notice. ********** 24. From the perusal of the above facts, it appears that firstly the cheque was issued in favour of the appellant as advance in security. Secondly, he has sent a total sum of Rs. 92 Lakhs to the respondent in different dates but he did not have the money laundering license at the time of advancing the amount of money. He is unable to specify the date of the advancement of money. He has failed to establish that he has the capacity to advance money of total Rs. 92 Lakhs, as his monthly income is only Rs. 6 Lakhs. 25. Dishonorment of Cheques by production of Bank-slip and memo

40 without having official mark or seal and signature thereupon, service of notice is one of the statutory requirements in initiation of criminal proceedings, but appellant/complainant failed to prove to have sent any demand notice to the respondent. 26. This Court is of the opinion that the trial court has rightly acquitted the respondent, hence, these acquittal appeals are devoid of merits, liable to be and is hereby dismissed, accordingly. Sd/- (Arvind Kumar Verma)

Judge Rajshekhar

41 HIGH COURT OF CHHATTISGARH, BILASPUR ACQA No. 248 of 2019 Appellant : Suresh Kumar Mahapatra Versus Respondent

: Dinesh Agrawal & Other connected Acquittal Appeals. Head Note The proof of service of notice makes a demand for the payment of the said amount of money is one of the statutory requirement in initiation of criminal proceedings as per provision of Section 138 (b) of the Negotiable Instruments Act, 1881.