JUDGMENT : 1. This present acquittal appeal is preferred under Section 378 (4) of the Code of Criminal Procedure, against the judgment dated 6/04/2013 passed by the Sixth Additional Sessions Judge, Durg, District Durg, Chhattisgarh in criminal appeal number 153/2012 "Ramesh Kumar Mishra vs Sunil Sahu", in which, the appeal of accused Ramesh Kumar Mishra was accepted and he was acquitted, whereby the said appeal was against the judgment dated 19/06/2012 passed by the Judicial Magistrate First Class, Durg, District Durg, Chhattisgarh in Criminal Case No. 454/2012 "Sunil Sahu Vs. Ramesh Kumar Mishra", in which, the trial court has convicted the accused-Ramesh Kumar Mishra under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo three months of rigorous imprisonment. 2. Brief facts of the case is that both the parties are familiar with each other. Complainant/appellant Sunil Sahu had given a loan of Rs 1,05,000/-(one lakh five thousand rupees) to the accused Ramesh Kumar Mishra on 01/05/2009 for personal need and for partial repayment of that amount which accused Ramesh Kumar Mishra had given a check (Ex.P-1) of Rs 55,000/-(fifty-five thousand rupees) on 30/08/2009 in favor of Sunil Sahu and to receive the check amount, the complainant Sunil Sahu deposited the said check in his account of HDFC Bank branch located at Station Road, Durg under deposit slip (Ex.P-2) on 08/09/2009, then it was deposited on 09/09/2009. It was informed through the bank's memorandum (Ex.P-3) and (Ex.P-4) that the check amount could not be paid due to lack of sufficient funds in the account of accused Ramesh Kumar Mishra. Thereafter, the complainant Sunil Sahu, through his advocate, sent the legal notice of (Ex.P.-7) dated 03/10/2009 to the accused Ramesh Kumar Mishra and demanded the check amount within 15 days. The registry receipt of sending the notice is (ExP-5) and the acknowledgment letter of receipt of notice to the accused is (Ex.P-6). Despite receiving the notice, the accused did not pay the check amount within the stipulated time of 15 days, on which the complainant Sunil Sahu filed a complaint in the court on 31/10/2009. 3. When accused Ramesh Kumar Mishra denied the charge in the trial court, complainant Sunil Sahu got himself examined and documents from Ex.P-1 to Ex.P-7 were proved. Despite receiving the notice, the accused did not pay the check amount within the stipulated time of 15 days, on which the complainant Sunil Sahu filed a complaint in the court on 31/10/2009. 3. When accused Ramesh Kumar Mishra denied the charge in the trial court, complainant Sunil Sahu got himself examined and documents from Ex.P-1 to Ex.P-7 were proved. In the statement under Section 313 of the Cr.P.C., accused Ramesh Kumar Mishra has admitted that he had an old acquaintance with the complainant Sunil Sahu and the check in question was given to the complainant Sunil Sahu by him which was dishonoured. Complainant Sunil Sahu had given him legal notice. There is his signature on the check but he has denied the loan and liability and has said that there was a deal of buying and selling of land between him, the complainant and in exchange for the money of a client, he gave the check in question to the complainant Sunil Sahu for the security amount. Thus, the accused/Ramesh Kumar Mishra denying his responsibility and he got himself examined in his defence. Manish Chandrakar (DW-2) and Kumar Shiv Prakash (DW-3) have been examined. According to which, Kumar Shiv Prakash had purchased the land from accused Ramesh Kumar Mishra, but the lay-out was not approved, therefore, some money was hold. The money was demanded by the complainant Sunil Sahu, so on behalf of Kumar Shiv Prakash, the accused Ramesh Kumar Mishra gave the check in question to the complainant as a security. After hearing the parties, the accused Ramesh Kumar Mishra was convicted by finding the complaint of the appellant/complainant Sunil Sahu by the trial court. 4. The accused-Ramesh Kumar Mishra against the said conviction and sentence, preferred the criminal appeal i.e. CRA No.153/2012, in which, it has been determined by the Appellate Court that the complainant Sunil Sahu has failed to prove the fact that the check under questioned was provided for the payment of the check loan. Therefore, after accepting the appeal and acquitted the accused, the conviction and sentence awarded by the trial Court was set aside. Hence, the present acquittal appeal. 5. Learned counsel for the appellant/complainant Sunil Sahu submits that the accused Ramesh Kumar Mishra has admitted the fact that there is his signature in the check in question and issuing the check in favor of the complainant Sunil Sahu. Hence, the present acquittal appeal. 5. Learned counsel for the appellant/complainant Sunil Sahu submits that the accused Ramesh Kumar Mishra has admitted the fact that there is his signature in the check in question and issuing the check in favor of the complainant Sunil Sahu. Therefore, under Section-139 of the Negotiable Instrument Act, 1881, the presumption is made in favor of the complainant Sunil Sahu. The accused Ramesh Kumar Mishra has been unsuccessful to prove the above contention. The Appellate Court has made an error by not accepting this fact. Therefore, the decision of the Appellate Court in question is not to be kept stable. He further relied on the judgment passed by the Hon’ble Supreme Court i.e. (P. Rasiya v. Abdul nazer and anr) 2022 SCC Online SC 1131. 6. Per contra, learned counsel for the accused-Ramesh Kumar Mishra opposed the contention made by counsel for the appellant and submits by demonstrating his defense, he did not give the cheque to the complainant Sunil Sahu for discharge of loan/debt, but a customer- Kumar Shiv Prakash had bought the land, but he did not pay the full payment, for which the complainant Sunil Sahu pressurized the purchaser, hence, on behalf of Kumar Shiv Prakash, he gave the cheque in question to Sunil Sahu as a security check. Thus, the check in question, which is said to be dishonored, was not for the discharge of any debt or liability and hence his acquittal is justified. Therefore, the appeal may be rejected. 7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. There is no dispute on this point from the evidence of both parties that the check in question has been issued by accused Ramesh Kumar Mishra in favor of complainant Sunil Sahu, which has his signature on it. It was presented in the bank for payment within the stipulated time and when it was dishonored, a legal notice was sent by the complainant Sunil Sahu demanding the amount and despite receiving the notice, the check amount was not paid within 15 days. 9. Thus, mainly dispute is whether the check in question was issued for the discharging of a valid loan or obligation or as a security? 10. It would be appropriate to first see the legal status in this regard. 9. Thus, mainly dispute is whether the check in question was issued for the discharging of a valid loan or obligation or as a security? 10. It would be appropriate to first see the legal status in this regard. The concept to be made under Section-139 of the Negotiable Instrument Act, 1881 is :- “It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.” 11. It is clear from the said legal provision that the holder of the check in question is Sunil Sahu. In its favor, the check has been issued completely or part of any debt or other obligation, this fact will be presumed until it is refuted. The check is approved by the accused Ramesh Kumar Mishra to be signed and issued a check in favor of the complainant Sunil Sahu, so according to the said provision, the presumption is made in favor of the complainant Sunil Sahu. 12. The statement of the complainant Sunil Sahu and accused Ramesh Kumar Mishra and his witness Manish Chandrakar and Kumar Shiv Prakash made the fact that they are well known to each other. Along with the accused Ramesh Kumar Mishra, the complainant Sunil Sahu has also been involved in the business of purchasing & selling land. The accused Ramesh Kumar Mishra and his witnesses have proved the documents from Ex.D-1 to Ex.D-9. From which, it also appears that the purchase and sale of land for Kanhaiya (father of Sunil Sahu) was also done by the same parties. But, only by the above consequent, it cannot be assumed that the accused-Ramesh Kumar Mishra has given the cheque to the complainant Sunil Sahu only for security. In such a situation, accused Ramesh Kumar Mishra should have presented clear evidence in this situation to assume that it could be assumed that the check in question was given in the form of security purpose. But, Kumar Shiv Prakash had purchased the land, how much was paid, how much was dues, what was the transaction about his sale, on what basis was the check of Rs. 55,000/- was issued, etc. The clear answer of the defence witnesses does not come from the statement. But, Kumar Shiv Prakash had purchased the land, how much was paid, how much was dues, what was the transaction about his sale, on what basis was the check of Rs. 55,000/- was issued, etc. The clear answer of the defence witnesses does not come from the statement. If the check was to be given as a security, then, why not the buyer Kumar Shiv Prakash gave the check and under what circumstances the accused-Ramesh Kumar Mishra gave the check, it has not been clarified. 13. In the matter of P.Rasiya (supra), relied by the counsel for the complainant-Sunil Sahu, which refers as under:- “Feeling aggrieved and dissatisfied with the judgment and orders passed by the Appellate Court affirming the conviction of the accused under Section 138 of the N.I. Act, the accused preferred three different Revision Applications before the High Court. By the impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary. The aforesaid has not been dealt with and considered by the High Court. The aforesaid has not been dealt with and considered by the High Court. The High Court has also failed to appreciate that the High Court was exercising the revisional jurisdiction and there were concurrent findings of fact recorded by the courts below.” 14. If we consider in the light of the provisions of Section-139 Negotiable Instruments Act, 1881 and the concept expressed in the above judgment by the Hon’ble Supreme Court, then in the case at hand, the presumption made in favor of the complainant Sunil Sahu under Section-139 Negotiable Instruments Act, 1881 is not refuted by the evidence presented by accused Ramesh Kumar Mishra. Therefore, the complaint case of complainant Sunil Sahu has been proved. In the above situation, the decision of acquittal passed by the appellate court is not found worthy of being sustained, rather the decision of conviction made by the trial court is appropriate. 15. Therefore, this appeal against acquittal is accepted. The decision of the appellate Court passed by the Sixth Additional Sessions Judge, Durg, District Durg, Chhattisgarh in CRA No. 153/2012 dated 16/04/2013 is set aside. And, the decision of the trial Court passed by the Judicial Magistrate First Class, Durg, Complaint Case No. 454/2012 (Sunil Sahu Vs. Ramesh Kumar Mishra) on 19-06-2012 under section 138 of Negotiable Instrument Act, 1881 conviction of the accused-Ramesh Kumar Mishra is confirmed. As far as sentencing is concerned, the incident happened about 14 years ago, hence, imprisonment is not appropriate. The accused is punished with a fine of Rs. 1,10,000/-(one lakh ten thousand rupees) instead of three months rigorous imprisonment. The fine amount will be deposited within a period of 60 days from today. In case of default in payment of fine, he will be liable to go simple imprisonment for 4 months. 16. In view of above consideration and direction, the present acquittal appeal is disposed of. 17. The records of the trial court and the appellate court along with the copy of the decision be sent back as soon as possible for further proceedings.