Judgment : (Rajani Dubey, J.) 1. This acquittal appeal is filed under Section 378 (4) of Cr.P.C by the appellant/complainant against the impugned judgment dated 27.02.2016 passed by the learned Judicial Magistrate, First Class, Raipur (Chhattisgarh) in Complaint Case No. 1077/2013, whereby the learned trial Court has acquitted the respondent/accused of the charge for commission of offence under Section 138 of the Negotiable Instruments Act, 1881. 2. Brief facts of the case are that the appellant/complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 before the learned trial Court alleging that the respondent is cousin brother and they have joined property situated at Satti Bajar, Raipur. The respondent and his brother Manish Shrivastava, his father Naval Kishore Shrivastava have made false and fabricated documents to sale a big part of joint property and they have succeeded on their conspiracy and sold a part of the property in Rs. 1,10,000,000 (One Crore Ten Lakhs) without any proper partition or any consent of the appellant/applicant. The complainant has lodged an F.I.R against the respondent, his brother and his father under Sections 420, 467, 468, 471, 34 of IPC. The respondent has given a cheque bearing No. 16255 dated 06.05.2013 Bank of Baroda branch Bemetara Rs. 5,00,000/- (Five Lakhs) for part compensation of the sold property. The appellant has presented the cheques on 07.06.2013, but the same was returned by the concerned Bank with a memo bearing remark and “insufficiency of fund”. That the appellant had asked to the respondent about the cheque bounce which he has given to the appellant, the respondent has assured that he will pay as early as possible the amount and he had promised that he will pay the amount till July, 2013 and given instruction to the appellant that he can move the above cheque for clearance on 27.07.2013. The appellant has again presented the above cheque for clearance but the same was returned by the concerned Bank with a memo bearing remark and “insufficiency of fund”. Hence, the notice was issued by the appellant’s lawyer on 15.08.2013 Exb. C-04 whereby the demand was raised, but the non applicant has given his reply on 29.08.2013 and denied all the averments, claim raised by the appellant. Hence, the notice was issued by the appellant’s lawyer on 15.08.2013 Exb. C-04 whereby the demand was raised, but the non applicant has given his reply on 29.08.2013 and denied all the averments, claim raised by the appellant. The only defence raised in the reply of the notice was that father of the appellant has said that now there is no necessity to pay the amount and there is no other defence for non payment. Hence, the complaint was filed alleging that the respondent/non applicant has committed an offence which is punishable under Section 138 of the Negotiable Instruments Act, 1881. 3. The complaint was contested by the non applicant/respondent. After recording of evidence, the learned trial Court has dismissed the complaint filed by the complainant holding that the respondent has not committed any offence punishable under Section 138 of the Act and acquitted the non applicant on 27.02.2016. Hence, this acquittal appeal filed by the appellant/complainant. 4. In support of the complaint, the appellant/complainant examined himself as PW-01 and exhibited 07 documents to bring home the guilt against the accused/respondent, whereas the respondent/accused has examined his Advocate as (DW-01) in his defence. 5. The learned trial Court after appreciating the oral and documentary evidence by judgment dated 27.02.2016, acquitted the respondent of the offence under Section 138 of the Negotiable Instruments Act, 1881. Hence, this acquittal appeal filed by the appellant/complainant. 6. Learned counsel for the appellant submits that the learned trial Court has failed to appreciate the facts of the case and provisions of Negotiable Instruments Act, 1881. The learned trial Court has failed to appreciate that cheque has been given for assurance and for the liability on account of the selling of the joint property and the amount is for part compensation of the sold property which is clear from the contents of complaint. It is crystal clear that since in Section 138 of NI Act there is a clear stipulation that the Court shall presume that cheques had been issued for discharging legal liabilities and as per evidence Act, the presumption is against the accused. Thus, in the present case, the learned trial Court shall had presumed that the cheque was given for legal liabilities, but contrary to the provisions. The learned trial Court held that there is no necessity of presumption and hence the accused is not required to deny. Thus, in the present case, the learned trial Court shall had presumed that the cheque was given for legal liabilities, but contrary to the provisions. The learned trial Court held that there is no necessity of presumption and hence the accused is not required to deny. This finding is totally against the provisions of Section 138, 118 of NI Act. The learned trial Court has failed to appreciate that the respondent has not filed any document which can prove that there is compromise between both the parties and the cheque has been issued for the compromise. The learned trial Court framed 9 issues in this case and issue No. 1 is rightly affirmed that the respondent has issued a cheque in favour of the appellant. The learned trial Court has affirmed issues No. 3,4,5,6 & 7 in favour of the appellant, but the learned trial Court has failed to appreciate that presumption cannot be taken against the complainant under Section 118 and 138 of NI Act. Therefore, the impugned judgment of conviction and sentence is liable to be set aside and respondent is liable to be convicted. 7. Learned counsel for the appellant places reliance on the decisions of Hon’ble Apex Court in the matter of Lalit Kumar Sharma and Anr. Vs. State of U.P & Anr. reported in (2008) 5 SCC 638 and in the matter of Hiten P. Dalal Vs. Bratindranath Banerjee reported in AIR 2001 SC 3897 . 8. Learned counsel for the respondent supporting the impugned judgment submits that the learned trial Court has minutely appreciated the oral and documentary evidence and rightly acquitted the respondent. As such, this judgment is well merited and this appeal being devoid of any merit is liable to be dismissed. 9. I have heard both the counsel for the parties and perused the material available on record. 10.From bare perusal of the record of learned trial Court it is evident that the complainant filed complaint under Section 138 of NI Act. The learned trial Court framed charges under Section 138 of NI Act to prove its case against the respondent. The complainant examined himself and filed Ex. P/01 to Ex. P/07 documents. The respondent/accused examined his Advocate in his defence. The learned trial Court framed charges under Section 138 of NI Act to prove its case against the respondent. The complainant examined himself and filed Ex. P/01 to Ex. P/07 documents. The respondent/accused examined his Advocate in his defence. The learned trial Court framed 09 point of determination and the learned trial Court finds that cheque was signed by the accused/respondent and it was given to the appellant/complainant, but the learned trial Court finds that this cheque was given by the respondent for compromise in criminal case. It is further vivid from the statement of accused/respondent under Section 313 that the accused/respondent admitted this fact that he gave signed cheque to the complainant and in his cross- examination he stated that he gave this cheque for compromise in criminal case. However, it is clear that the accused/respondent has not filed any document of criminal case or other witness. 11. Hon’ble Apex Court in the matter of Hiten P. Dalal (supra) held in paragraph 35 which reads as under:- “35. The burden was on the appellant to disapprove the presumptions under Ss. 138 and 139 a burden which he failed to discharge at all. The averment in the written statement of the appellant was not enough. Incidentally, the defence in the written statement that the four cheques were given for intended transactions was not the answer given by the Appellant to the notice under Section 138. Then he had said that the cheques were given to assist the Bank for restructuring (Ex. H). It was necessary for the appellant at least to show on the basis of acceptable evidence either that his explanation in the written statement was so probable that a prudent man ought to accept it or to establish that the effect of the material brought on the record, in its totality, rendered the existence of the fact presumed, improbable. (Vide Trilok Chand Jain v. State of Delhi (1975) 4 SCC 761 ). The appellant has done neither. In the absence of any such proof the presumption under Sections 138 and 139 must prevail.” 12. Hon’ble Apex Court in the matter of Rajesh Jain vs. Ajay Singh reported in AIR 2023 SC 5018 . held in paras 54 & 55 as under:- “ 54 . Nothing significant has been elicited in the cross-examination of complainant to raise any suspicion in the case set up by the complainant. Hon’ble Apex Court in the matter of Rajesh Jain vs. Ajay Singh reported in AIR 2023 SC 5018 . held in paras 54 & 55 as under:- “ 54 . Nothing significant has been elicited in the cross-examination of complainant to raise any suspicion in the case set up by the complainant. Other than some minor inconsistencies, the case of the complainant has been consistent throughout as can be noticed from a perusal of the complainant, demand notice and affidavit evidence. In fact, the signature on the cheque having not been disputed, and the presumption under Section 118 and 139 having taken effect, the complainant’s case stood satisfied every ingredient necessary for sustaining a conviction under Section 138. The case of the defence was limited only to the issue as to whether the cheque had been issued in discharge of a debt/liability. The accused having miserably failed to discharge his evidential burden, that fact will have to be taken to be proved by force of the presumption, without requiring anything more from the complainant. “ 55 . As rightly contended by the appellant, there is a fundamental flaw in the way both the Courts below have proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly.” 13. In light of above judgment, and in the present case also the learned trial Court finds that the cheque was given by the accused/respondent and it is also clear that Ex. P/01 cheque was dishonoured by the Bank. The Court would then take an overall view based on the evidence on record and decide accordingly.” 13. In light of above judgment, and in the present case also the learned trial Court finds that the cheque was given by the accused/respondent and it is also clear that Ex. P/01 cheque was dishonoured by the Bank. The accused/respondent stated that this cheque was not for any legal debt, but he did not file any sufficient evidence to prove his defence, however, the learned trial Court did not appreciate the provisions of NI Act and acquitted the accused/respondent. The finding recorded by the learned trial Court is not according to the facts and circumstances of the case and according to the provisions of the NI Act. 14. Ex consequenti, the appeal is allowed. The impugned judgment dated 27.02.2016 is liable to be set aside and is hereby set aside. The respondent/accused is convicted under Section 138 of Negotiable Instruments Act and he is sentenced to pay fine of Rs. 6,00,000/- (Rupees Six Lakhs only) to the appellant/complainant as compensation under Section 357(3) of Cr.P.C. to the appellant/complainant within a period of six months from the date of receipt of copy of this judgment. In case of default of payment of fine, he shall undergo simple imprisonment for 2 years.