1 2025:CGHC:17262 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1100 of 2025 1 - Mahendra Kumar Soni S/o Late Narmada Shankar Soni Aged About 48 Years R/o H.No. B/1, Police Line Tarbahar, Bilaspur, District Bilaspur, Chhattisgarh. ... Appellant/Complainant. versus 1 - Usha Mishra W/o Vijaykant Mishra Aged About 40 Years R/o Shanti Nagar, P.S. Champa, District : Janjgir-Champa, Chhattisgarh ... Respondent(s)/Accused. For Petitioner(s) : Shri Rakshit Tiwari, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 15/04/2025 1. Heard on I.A. No.1 of 2025, application for condonation of delay. 2. On due consideration, I.A No.1/2025 is allowed and delay of 99 days is condoned. 3. Complainant/Appellant has filed this petition under Section 419(4) of BNSS, 2023 for grant of leave to appeal against the order of acquittal dated 20.09.2024 passed by Judicial Magistrate First Class, District Bilaspur (Chhattisgarh) in Complaint Case No.410 of 2021 whereby, respondent/accused was acquitted of the charges under Section 138 of the AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.04.17 17:18:15 +0530 2 Negotiable Instruments Act, 1881. 4. Brief facts of the case are that the complainant/appellant, who is the resident of Bilaspur, has filed the complaint case at District Janjgir, by making averment inter alia, that he works as an agent in Post OfÏce and he also does the work of buying and selling land and for the said business purposes, he met the respondent/accused who sold his house situated at Shanti Nagar, Champa to complainant for a consideration of Rs.15,00,000/-. Out of which, respondent received consideration of Rs.3,60,000/- in cash and Rs.1,40,000/- through cheque bearing No.333478. Respondent/accused also entered into an agreement on 25.07.2017 in the presence of two witnesses. Further, Respondent/accused also disclosed the fact that the said property is mortgaged with the Chhattisgarh Rural Bank, Champa and prior to 31.03.2020 she would get released the said property from the mortgage and would execute the sale deed in favour of the complainant. However when she failed to execute the sale deed, she gave a cheque (Ex.P/1) for returning the said advance money of Rs.5,00,000/-. When the said cheque was presented for encashment, the same got dishonoured with a communication receipt from Andhra Bank on 04.06.2020 vide Ex.P/2. Thereafter a legal notice was sent to respondent/accused vide Ex.P/5. In spite of said notice, respondent/accused had not paid the amount of cheque. Hence a complaint has been filed. 5. Learned Magistrate after evaluating evidence available on record acquitted the respondent/accused. Hence this leave to appeal has been filed. 6. Learned counsel for the appellant would submit that as there is legal presumption under Section 139 of the Act, 1881 which was not rebutted 3 by the respondent/accused, the trial Court has wrongly acquitted the respondent/accused. 7. I have heard learned counsel for the petitioner and perused the documents annexed with the petition carefully. 8. Complainant Mahendra Kumar Soni (CW-1) categorically admits in his cross-examination that prior to entering into an agreement, he had not verified as to whether the subject land was recorded in the name of respondent/accused or not. Complainant further admits that he had also not verified B-1 and B-2 of the property for which an agreement (Ex.P/7) was made. Further, Complainant has also failed to prove the cheque through which he has paid part of consideration i.e. Rs.1,40,000/-. Complainant has also not examined the witnesses to the agreement namely Paresh Srivastava and Sunil Dongre in whose presence the said agreement was executed and for payment of remaining consideration of Rs.3,60,000/- in cash, no document was executed between the parties. Complainant has also not filed his bank statement nor any other details reflecting his capacity for payment of such an amount. Further considering the statement of defence witness namely Pramod Kumar Sao that the complainant was doing money lending business and husband of the accused had taken loan of Rs.1,40,000/- only and the said amount was also paid back to the complainant, as towards security complainant had obtained cheque on the assurance that after repayment of the money, he would destroy the same but he abused. In the statement, accused/respondent has also taken similar plea. 9. Considering the aforesaid infirmities, trial Court has rightly reached to the conclusion that complainant failed to prove his case against the 4 respondent/ accused and that the complainant has paid the said amount by way of cheque to respondent/accused. 10.In the the matter of Dattatraya v. Sharanappa1 it has been observed that the complainant failed to prove its financial capacity or any acknowledgment in his Income Tax Return to the effect of having advanced loan to the respondent/accused, the transaction was found doubtful. While dismissing the appeal, acquittal order was afÏrmed. 11.For the foregoing, this Court is of the view that no case is made out for grant of leave. Accordingly the same is refused and, in consequence, instant Cr.M.P is dismissed. Sd/- (Deepak Kumar Tiwari) Judge Avinash 1(2024) 8 SCC 573