HRHS010057562016

Presented on : 19-08-2016
Registered on : 20-08-2016
Decided on : 28-08-2023
Duration : 7 years, 0 months, 9 days

In the Court of Dr. Gagandeep Mittal, Additional Sessions Judge

Hisar. UID No.HR0203.

(1)
Criminal Appeal No.195 of 2016.
CIS No.CRA-434 of 2016.
CNR No.HRHS01-005756-2016.
Date of Institution: 20.08.2016/14.11.2022
Date of Decision: 28.08.2023.

Ram Kishan son of Shri Fateh Chand, resident of House No.14, Shiv
Bhawan, Krishna Nagar, Hisar.

...Appellant/accused.

Versus.

Smt. Santosh wife of late Shri Ashok Kumar, resident of House No.400,
Krishna Nagar, Hisar.

..… Respondent-complainant.

Appeal u/s 378 Crpc against the judgment dated

16.07.2016 and order of quantum of sentence dated
20.07.2016, passed by the Court of Ms. Indu Bala, the
then, learned JMIC, Hisar.

Present: Appellant-accused on bail with Shri Arjun Singh, Advocate.

Shri Karan Singh Tanwar, counsel for the respondent.

( Dr. Gagandeep Mittal )

ASJ, Hisar.
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Santosh v. Ram Kishan
2

(2)
HRHS010082982016

Presented on : 10-10-2016
Registered on : 13-10-2016
Decided on : 28-08-2023
Duration : 6 years, 10 months, 18 days

Criminal revision No.47 of 2016.

CIS No.CRR-302 of 2016.
CNR No.HRHS01-008298-2016.
Date of Institution: 12.10.2016/1.12.2022
Date of Decision: 28.08.2023.

Santosh wife of late Shri Ashok Kumar, resident of House No.400, Krishna
Nagar, Hisar.
..… Revisionist-complainant.
Versus.

Ram Kishan son of Shri Fateh Chand, resident of House No.14, Shiv
Bhawan, Krishna Nagar, Hisar.
...Respondent/accused.

Revision under Section 397 of Cr.P.C. against the judgment

dated 16.07.2016 and order of quantum of sentence dated
20.07.2016, passed by the Court of Ms. Indu Bala, the then,
learned JMIC, Hisar.

Present: Shri Karan Singh Tanwar, counsel for the revisionist-

complainant.
Shri Arjun Singh, Advocate for respondent-accused

JUDGMENT :

Vide this common judgment, this Court shall dispose off an

appeal titled as Ram Kishan v. Santosh and a revision titled as Santosh v.

( Dr. Gagandeep Mittal )

ASJ, Hisar
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Ram Kishan, since they have germinated from a common judgment of

conviction in the case titled as Santosh v. Bunty dated 16.7.2016 and order

of quantum of sentence dated 20.7.2016 passed by Ms. Indu Bala, the then

learned JMIC, Hisar.

2. The appeal has been preferred by appellant-accused Ram

Kishan against the judgment dated 16.07.2016 and order of quantum of

sentence dated 20.07.2016, passed by the Court of Ms. Indu Bala, the then,

learned JMIC, Hisar in Criminal complaint No.649-II dated 21.01.2015 filed

under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred

to as “138 of N.I. Act”), titled as “Santosh v. Bunty ” , whereby the

appellant-accused was convicted and sentenced to undergo simple

imprisonment for one year and to pay compensation to the tune of

Rs.11,79,250/- within one month from the passing of the judgment.

3. The revision petition has been filed by the complainant-

Santosh seeking enhancement of sentence awarded vide order dated

20.07.2016.

4. For the sake of convenience, the parties shall be referred to

hereinafter as per their original status before the learned trial Court.

5. Synopsis of the facts essential for the disposal of the appeal and

revision are that the complainant Santosh and accused Ram Kishan and his

wife Bunty had friendly relations and visiting terms. In the month of June,

2012, they visited the house of the complainant and requested her to lend

( Dr. Gagandeep Mittal )

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them Rs.8,50,000/- for their personal necessity. They agreed to return the

amount as and when the same would be demanded by the complainant

alongwith 18% per annum interest from the date of lending the money till its

actual payment. The complainant had no reason to doubt their intentions

since they were having a good relation from a long time. Accordingly, the

complainant loaned them Rs.8,50,000/-. Accused No.1 executed a

promissory note and receipt dated 12.6.2012 in lieu of received amount of

Rs.8,50,000/-. The said promissory note was witnessed by Anu Chaudhary

wife of Shri Ravinder Bamal and Sushma wife of late Shri Vikas Chaudhary.

The accused also issued three security cheques bearing No.712523, 712526

and 712521 each drawn on State Bank of India, Main Branch, Hisar from

account No.011947531 being maintained in the name of accused No.2.

Unfortunately, the husband of complainant expired on 17.1.2014 and only

son of the complainant, namely Vikas had predeceased her husband on

14.11.2013. So, complainant was having acute shortage of funds. She

recollected about the money which she lent to accused. She asked the

accused to return the amount alongwith interest in September 2014. Both the

accused admitted the liability of their legal enforceable debt and requested

the complainant to allow them a period of three months i.e. upto December,

2014 to repay the entire amount alongwith interest, which was recalculated

to the tune of Rs.12,30,250/- (i.e. Rs.8,50,000/- as principal amount and

Rs.3,80,250/- as simple interest calculated @ 18% p.a. from 12.6.2012 till

( Dr. Gagandeep Mittal )

ASJ, Hisar
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18.12.2014). Interest was calculated as Rs.3,44,250/- on Rs.8,50,000/- from

12.6.2012 till 17.9.2014 and as Rs.36,000/- on Rs.8,00,000/- from 17.9.2014

to 11.12.2014 (approximately). In order to acknowledge and confirm the

balance outstanding debt, accused No.2 got filled all the three cheques viz.

Cheque bearing No.712523 dated 17.9.2014 for Rs.51,000/-, cheque bearing

No.712526 dated 11.12.2014 for Rs.3,00,000/- and cheque bearing

No.712521 dated 19.12.2014 for Rs.8,79,250/-. The accused assured that all

the cheques would be cleared on their presentation. On the assurance of

accused No.2, the complainant presented the first cheque bearing No.712523

dated 7.9.2014 for Rs.51,000/- on 17.9.2014 in the saving account

No.33639749245 and the said cheque was duly encashed. However, when

she presented second cheque bearing No.712526 dated 11.12.2014 for

Rs.3,00,000/- in HDFC Bank Limited, the said cheque got dishonoured vide

cheque return memo dated 12.12.2014 for the reasons of shortage of funds.

The complainant contacted the accused No.2 and told about the

dishonouring of the cheque bearing No.712526. The accused confessed his

guilt and felt sorry and told her to present the cheque No.712526 and another

cheque No.712521 together on or after 20.12.2014 and further undertook

that he would maintain sufficient funds in his account for honouring and

encashment of the cheques. The complainant presented the cheques on

20.12.2014 in the bank, but to her astonishment, both the cheques got

dishonoured for want of sufficient funds vide two cheque return memos

( Dr. Gagandeep Mittal )

ASJ, Hisar
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dated 20.12.2014. The complainant served notice dated 23.12.2014 under

Section 138 of N.I.Act to the accused through registered post (copies of the

AD have been attached) calling upon him to pay the amount. However,

despite service of notice, accused neither replied to the said notice nor paid

the amount. Broadly with these allegations, the complaint has been filed by

the complainant.

6. After preliminary evidence, both the accused were summoned

by the trial Court vide order dated 21.1.2015.

7. Both the accused appeared on 6.2.2015 and were enlarged on

bail after furnishing the requisite bail bonds. They were served upon notice

of accusation vide order dated 6.2.2015. Both the accused challenged the

order of notice of accusation before the revisional Court and vide order

dated 27.7.2015, the revisional Court of Shri Vimal Kumar, the then learned

ASJ, Hisar allowed the revision qua accused Smt. Bunty and discharged her.

However, it upheld the order of notice of accusation against accused Ram

Kishan and accordingly accused Ram Kishan faced the trial before the trial

Court.

8. In pursuance of the notice of accusation, complainant has

examined the following witnesses:

Santosh (complainant herself) CW1

Anu Chaudhary CW2
N.N.Sharma, Manager SBI Hisar PW3

( Dr. Gagandeep Mittal )

ASJ, Hisar
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9. Apart from oral evidence, following documents have been

proved on record:

Ex.PW1/A Affidavit of complainant

Ex.PW2/A Affidavit of Anu Chaudhary
Ex.C1 Statement of account
Ex.C2 to Ex.C5 Bank Memos
Ex.C6 and Ex.C8 Original cheques
Ex.C7 Bank Memo
Ex.C9 Pronote
Ex.C10 Legal notice
Ex.C11 and Ex.C12 Postal receipts
Ex.P13 Death certificate of Ashok Kumar
Ex.P14 Death certificate of Vikas
Ex.C-15 and Ex.C16 Copy of transaction inquiry.

10. All the incriminating evidence brought on file by the

complainant was put to the accused when he was examined under Section of

313 Cr.P.C, but he denied all the accusations and pleaded false implication.

In defence, accused has relied upon the following document:

Ex.D1 Photocopy of handwritten document

11. After marshalling the evidence produced on record and hearing

arguments advanced by both the sides, learned trial Court convicted the

accused under Section 138 of N.I.Act vide judgment dated 16.07.2016 and

( Dr. Gagandeep Mittal )

ASJ, Hisar
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vide order of quantum of sentence dated 20.07.2016 awarded the following

sentence:-

Section Sentence Compensati Sentence, in default

of payment of fine
on
138 of Rigorous imprisonment Rs.11,79,250/- Simple imprisonment
N.I.Act for a period of one year within one for a period of three
month.
months

12. Feeling aggrieved against the judgment of conviction dated

16.07.2016 and order of sentence dated 20.07.2016, appellant-accused Ram

Kishan filed the present appeal no. 195 of 2016 titled ‘Ram Kishan v.

Santosh’ challenging his conviction.

13. Simultaneously, the complainant filed a revision for the

enhancement of sentence awarded to accused.

14. While opening the arguments on behalf of accused (appellant)

learned counsel for the appellant has submitted that the findings returned by

the lower Court in the impugned judgment of conviction dated 16.7.2016

and order of sentence dated 20.07.2016 are demonstratively erroneous since

the Court failed to appreciate that the cheques Ex.C6 and Ex.C8 for an

amount of Rs.3,00,000/- and Rs.8,79,250/- respectively, which ultimately

got dishonoured, were not representing the legally enforceable debt and

therefore, no offence of Section 138 of N.I.Act would be made out against

the accused on the basis of said cheques. He further elaborated that the

( Dr. Gagandeep Mittal )

ASJ, Hisar
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complainant has admitted her signatures on Ex.D1 (receipt of Rs.50,000/-

from accused on 9.11.2014) on 6.6.2016 in the Court and during cross-

examination that she received Rs. 50000/- from accused and if she had

already received Rs.50,000/- from the accused on 9.11.2014 and withdrawn

Rs.51,000/- vide cheque No.712523 dated 17.9.2014, then there was no

occasion to calculate the interest on Rs.8,00,000/- and then filling the

security cheques accordingly. He further explained that the recoverable debt

on 11.12.2014 was not Rs.8,00,000/-, rather it was lesser, even if the version

of the complainant is taken on the face value and thus the cheques Ex.C6

and Ex.C8 were not representing the recoverable debt. He further urged that

in fact the real story was that accused had borrowed Rs.1,00,000/- from the

husband of the complainant and he returned the amount by way of cheque of

Rs.51,000/- and Rs.50,000/- in cash. However, the complainant driven by

her avarice misused the duly signed cheques of accused Ram Kishan to file

the present complaint. He further added that the cheques were not exhibiting

the real recoverable debt and therefore no case under Section 138 of N.I.Act

is made out against the accused. In order to bolster his arguments, learned

counsel for the accused has relied upon case law titled as Dashrathbhai

Trikambhai Patel v. Hitesh Mahendrabhai Patel and anr. Criminal

Appeal No.1497 of 2022 decided on 11.10.2022. While concluding his

submissions, he urged that the judgment of conviction dated 16.07.2016 and

order of quantum of sentence dated 20.07.2016 may be set aside and accused

( Dr. Gagandeep Mittal )

ASJ, Hisar
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may be acquitted from the charge of Section 138 of N.I.Act.

15. A contrario sensu, while seconding fervently the judgment of

conviction of the learned lower Court, learned counsel for the complainant

has urged that accused Ram Kishan and his wife Bunty obtained a friendly

loan of Rs.8,50,000/- from the complainant and they both executed a

promissory note Ex.C9 acknowledging the liability. Both the accused also

issued Cheque bearing No.712523 dated 17.9.2014 for Rs.51,000/-, cheque

bearing No.712526 dated 11.12.2014 for Rs.3,00,000/- and cheque bearing

No.712521 dated 19.12.2014 for Rs.8,79,250/- in discharge of their legal

liability. He further argued that out of the three cheques, one cheque bearing

No. 712523 dated 17.9.2014 for Rs.51,000/- got encashed whereas

remaining two cheques bearing No.712526 dated 11.12.2014 for

Rs.3,00,000/- and cheque bearing No.712521 dated 19.12.2014 for

Rs.8,79,250/- were dishonoured for want of sufficient funds. He further

submitted that copy of promissory note Ex.C9 and security cheques

themselves prove that the accused owed a legal recoverable debt to the

complainant. He further added that the amount of Rs.50,000/- which was

received by the complainant has no connection with the loan amount and

therefore, it would not absolve the accused from his legal liability. He

further argued that the trial Court has rightly convicted the accused, but has

imposed sentence inadequately and therefore the appeal filed by the accused

may be dismissed and the revision filed by the complainant for enhancement

( Dr. Gagandeep Mittal )

ASJ, Hisar
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of punishment may be allowed and the accused may be punished for

maximum punishment as provided under Section 138 of the Act. In support

of his contentions, he has relied upon case laws titled as Rajni Dhingra v.

Sanjeev Chugh criminal Miscellaneous No.M-45791 of 2019 decided

on 12.1.2022, M/s Kalamani v. P.Bala Subramaniyan Criminal

Appeal No.123 of 2021 decided on 10.2.2021, Don Ayengia v. State

of Assam Criminal Appeal Nos. 82-83 of 2016 decided on 28.1.2016,

Mukund Lal v. State of Gujrat Criminal Revision 576 of 2014

decided on 30.7.2025, Rajinder Virk v. Punjab State Co-operative

CRR NO.3521 of 2015 decided on 18.9.2015, C-Victoria v.

Subramani @ Periyathambi SA No.1025 of 2009 decided on

4.9.2013, Lrs of Heera Singh v. State of Rajasthan SB Criminal

Revision Petition No.1161 of 2011 decided on 1.2.2013 and

Krushnagi v. Amol Criminal appeal No.336 of 2008 decided on

8.10.2012.

16. Arguments of learned counsel for the appellant-accused and

learned counsel for the complainant-respondent have been heard by this

Court and record has been perused thoroughly.

17. Admittedly, the accused has not denied his signatures on the

cheques Ex.C6 and Ex.C8. The said cheques were presented to the bank

concerned within the period of its validity and were returned unpaid for want

of sufficient funds. Thereafter, complainant issued notices Ex.C10 dated

( Dr. Gagandeep Mittal )

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23.12.2014 to the accused calling upon him to pay the amount within 15

days, but the accused neither replied to the notice nor paid the amount. All

the basic ingredients of Section 138 of N.I. Act and also of 118 and 139 are

apparent on the face of the record. The learned Trial Court had also

consciously taken note of these facts and drawn the requisite presumption.

According to the presumption, the cheques Ex.C6 and Ex.C8 were drawn for

consideration and the holder of the cheque i.e. complainant received them in

discharge of an existing debt. The onus, therefore, shifts upon the accused to

establish a probable defence, so as to rebut the presumption which is

essentially rebuttable.

18. In order to rebut the presumption, learned counsel for the

accused has mainly argued that since the cheques Ex.C6 and Ex.C8 were not

representing real recoverable debt on the date of presentation, no case of

Section 138 of N.I.Act is made out against him. In support of his

submissions, he has placed reliance upon Dashrathbhai Trikambhai

Patel’s case (supra) .

19. Since the entire defence of the accused rests upon one

celebrated argument supported with a citation, let us discuss it in detail. In

the ibid case, the complainant set up a case that accused borrowed a sum of

Rs.20,00,000/- from him on 16.1.2012 and in order to discharge his liability,

he issued a cheque dated 17.3.2014 for the said sum. On presentation, the

said cheque got dishonoured on 2.4.2014 due to insufficient funds. The

( Dr. Gagandeep Mittal )

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complainant issued notice to accused calling upon him to make the payment,

but accused did not pay the amount. The complainant then filed a complaint

under Section 138 of N.I.Act. The trial Court acquitted the accused since it

was proved during the trial that accused had paid Rs.4,09,315/- from

8.4.2012 to 30.12.2013. The trial Court further observed that complainant

failed to prove that accused owed a legally recoverable debt of

Rs.20,00,000/- on the presentation of said cheque. Aggrieved with this

judgment of acquittal, the complainant approached the Hon’ble High Court.

The Hon’ble Gujarat High Court vide its judgment dated 12.1.2022

dismissed the appeal primarily on the ground that part payment made by the

respondent-accused must have been reflected in the statutory notice issued

by the complainant to accused. The sum in the cheque was higher than the

amount that was due at that time. It was also held that notice issued under

Section 138 of N.I.Act was omnibus and invalid since it did not mention

about the part payment. Still unsatisfied with the said judgment of the

Hon’ble Gujarat High Court, the complainant approached the Hon’ble

Supreme Court and having regard to all the facts and circumstances, the

Hon’ble Supreme Court of India dismissed the appeal while making the

following observations in para No.30, which have been reproduced

hereinunder:

30.In view of the discussion above, we summarise our

findings below:

( Dr. Gagandeep Mittal )

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(i) For the commission of an offence under Section 138, the

cheque that is dishonoured must represent a legally
enforceable debt on the date of maturity or presentation;
(ii)If the drawer of the cheque pays a part or whole of the sum
between the period when the cheque is drawn and when it is
encashed upon maturity, then the legally enforceable debt on
the date of maturity would not be the sum represented on the
cheque;
(iii)When a part or whole of the sum represented on the
cheque is paid by the drawer of the cheque, it must be
endorsed on the cheque as prescribed in Section 56 of the
Act. The cheque endorsed with the payment made may be
used to negotiate the balance, if any. If thecheque that is
endorsed is dishonoured when it is sought to be encashed
upon maturity, then the offence under Section 138 will
stand attracted;
(iv)The first respondent has made part-payments after the debt
was incurredand before the cheque was encashed upon
maturity. The sum of rupees twenty lakhs represented on the
cheque was not the ‘legally enforceable debt’ on the date of
maturity. Thus, the first respondent cannot be deemed to have
committed an offence under Section 138 of the Act when the
cheque was dishonoured for insufficient funds; and
(v)The notice demanding the payment of the ‘said amount of
money’ has been interpreted by judgments of this Court to
mean the cheque amount. The conditions stipulated in the
provisos to Section 138 need to be fulfilled in addition to the
ingredients in the substantive part of Section 138. Since in this
case, the first respondent has not committed an offence under

( Dr. Gagandeep Mittal )

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Section 138, the validity of the form of the notice need not be
decided.
20. Now, let us examine the facts of the case bearing in mind the

aforesaid factual matrix and the ultimate conclusions. Admittedly, the blank

security cheques Ex.C6 and Ex.C8 were issued by the accused on 12.1.2014

when the amount was allegedly borrowed by the accused from the

complainant. According to para No.7 & 8 of the complaint, complainant

asked the accused in September, 2014 to repay the borrowed amount

alongwith interest and the accused allegedly acknowledged their liability

and sought three months time to clear their liability upto December, 2014.

The recoverable amount was calculated as below:

Date Amount
Principal amount 8,50,000/-
12.6.2012 till 18.12.2014 on Rs.8,50,000/- Rs. 3,44,250/- till 17.9.2014
17.09.2014 to 11.12.2014 on Rs.8,00,000/- Rs.36,000/-
Total 12,30,250

21. Complainant has admitted in her cross-examination that she

received Rs.50,000/- from the accused, but she feigned ignorance about the

receipt of amount. During trial, the complainant admitted her signatures on

Ex.D1, which shows that she received Rs.50,000/- on 9.11.2014. Her cross-

examination read with receipt Ex.D1 proves that she had received

Rs.50,000/- on 9.11.2014. However, this payment has neither been

acknowledged by the complainant either by way of an endorsement on the

( Dr. Gagandeep Mittal )

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cheques in view of Section 56 of N.I.Act (point no.iii of ibid observations)

on either of the cheques nor the same was acknowledged in the legal notice

Ex.C10 dated 23.12.2014. Under these circumstances, in view of the dictum

of the ibid judgment, a notice cannot be said to be reflecting the actual

recoverable debt on the date of presentation of cheques because at that time

the amount was lesser than the one shown in the legal notice. The ibid

judgment relied upon by the counsel for the accused is squarely applicable to

the present facts. Thus, going by the dictum of the aforesaid judgment, no

case of Section 138 of N.I.Act is made out against the accused.

22. As an upshot to the entire discussion, this Court has no

hesitation to hold that the findings returned by the learned Trial Court in the

impugned judgment of conviction dated 16.7.2016 and order of quantum of

sentence dated 20.7.2016 are perverse and illegal, therefore, the judgment of

the conviction dated 16.7.2016 and order of quantum of sentence dated

20.07.2016 passed by the learned trial Court is hereby set aside and accused

stands acquitted from the charge of Section 138 of N.I.Act.

23. Since, the appeal of the accused has been accepted and accused

has been acquitted from the offence under Section 138 of N.I.Act, the

revision filed by the complainant for the enhancement of the punishment

becomes infructuous and is accordingly dismissed.

24. Ordered accordingly.

25. A copy of this judgment be also placed in revision file.

( Dr. Gagandeep Mittal )

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26. Trial Court record be sent back with a copy of judgment and

file of criminal appeal and revision be consigned to record room after due

compliance.

Announced in open Court. Dr. Gagandeep Mittal

Date of Order: 28.08.2023 Additional Sessions Judge, Hisar
Vijay Chraipotra, S.G.II UID NO. HR00203

Certified that the judgment contains seventeen pages and all the pages have
been checked and signed by me.

Announced in open Court. Dr. Gagandeep Mittal

Date of Order: 28.08.2023 Additional Sessions Judge, Hisar
Vijay Chraipotra, S.G.II UID NO. HR00203

( Dr. Gagandeep Mittal )

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Present: Appellant-accused on bail with Shri Arjun Singh, Advocate.

Shri Karan Singh Tanwar, counsel for the respondent.

Arguments heard.

Vide separate detailed judgment of even date of this

court, the present appeal has been allowed and judgment of

conviction dated 16.7.2016 and order of sentence dated

20.07.2016 passed by the Court of Ms. Indu Bala, the then

learned Judicial Magistrate Ist Class, Hisar, has been set aside

and accused stands acquitted from the charge of Section 138 of

N.I.Act. Trial Court record alongwith a copy of this judgment be

sent back. The appeal file be consigned to the record room after

due compliance.

Announced in open Court. Dr. Gagandeep Mittal

Date of Order: 28.08.2023 Additional Sessions Judge, Hisar
Vijay Chraipotra, S.G.II UID NO. HR00203

( Dr. Gagandeep Mittal )

ASJ, Hisar
 CNR No: HRHS010057562016 CIS No: CRA./434/2016
Ram Kishan v. Santosh
CNR No: HRHS010082982016 CIS No: CRR/302/2016
Santosh v. Ram Kishan
19

Present: Shri Karan Singh Tanwar, counsel for the revisionist-

complainant.
Shri Arjun Singh, Advocate for respondent-accused

Arguments heard.

Vide separate detailed judgment of even date of this

court, the present revision has been dismissed being infructuous.

Trial Court record alongwith a copy of this judgment be sent

back. The appeal file be consigned to the record room after due

compliance.

Announced in open Court. Dr. Gagandeep Mittal

Date of Order: 28.08.2023 Additional Sessions Judge, Hisar
Vijay Chraipotra, S.G.II UID NO. HR00203

( Dr. Gagandeep Mittal )

ASJ, Hisar