1 Reserved on : 09/04/2025 Delivered on : 08/07/2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 10 of 2017 Indrapal Singh Hora (Through Legal Representative Harjeet Kour ) S/o Mahendra Singh Hora, Aged About 54 Years Proprietor Of Hardeep Cycle And Riksa Speyer, R/o Dayalband Bilaspur, Police Station City Kotwali, Tahsil And District Bilaspur, Chhattisgarh, Through Legal Representative Harjeet Kaur Wd/o Late Indrapal Singh Hora, Aged About 50 Years R/o Dayalband Bilaspur, Police Station City Kotwali, Tahsil And District Bilaspur, Chhattisgarh ... Appellant versus Vikky Kumar Idnani S/o Ramchandra Idnani, Aged About 28 Years R/o Sindhi Colony, Ward No. 4, Behind Of Santi Woods Stock Tal Police Station Civil Line, Tahsil And District Bilaspur, Chhattisgarh ... Respondent For Appellant (s) : Ms. Vidhi Matlani, Adv. on behalf of Shri Sanjay Agrawal, Advocate For Respondent(s) : Shri Ashutosh Trivedi, Advocate SB: Hon’ble Shri Justice Sachin Singh Rajput C A V Judgment This acquittal appeal under Section 378 (4) CrPC, 1973 has been filed by the appellant aggrieved by the impugned judgment dated 26/10/2016 passed by the learned Additional Sessions Judge, Bilaspur in Criminal Appeal No.102/2015 whereby the respondent has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act of 1881’). 2. Learned counsel for the appellant submits that the learned appellate Court committed an error in appreciating the oral and documentary evidence on record and wrongly acquitted respondent which is totally perverse. She submits that the respondent has admitted his signature on the cheque, therefore, presumption would be drawn against the respondent. She submits that income tax return and 2 papers of accounts have been filed which has been wrongly disbelieved by the learned appellate Court. Therefore, she submits that the judgment of acquittal deserves to be set aside and prays that the respondent may be convicted. She places reliance on decision of this Court in the case of Vijay Kumar Agrawal v. Parmanand Mishra and anr., 2024 SCC Online Chh 5035. 3. On the other hand, learned counsel for the respondent submits that the appellant could not prove legally enforceable debt or liability against the respondent. The defence taken by the respondent is that he had obtained Rs.25,000/- as loan from the appellant and the same was returned with an installment of Rs.1000/- and he had given a cheque as security which was misused. The appellant has not been able to prove that the recital of the cheque was made by the respondent. Therefore, the learned appellate Court has given benefit of doubt to the respondent. He further submits that in the income tax return filed before the Court, it is nowhere mentioned that the said amount was given on debt to the respondent. 4. I have heard learned counsel for the parties and perused the record. 5. Hon’ble Supreme Court in the case of Bhim Singh v. State of Haryana, (2002) 10 SCC 461 observed that an appellate Court entertaining an appeal from the judgment of acquittal by the trial Court though entitled to re-appreciate the evidence and come to an independent conclusion, it should not do so as a matter of routine. It has been held in paragraph 9 as under - “Before concluding, we would like to point out that this Court in a number of cases has held that an Appellate Court entertaining an appeal from the judgment of acquittal by the trial court though entitled to re- appreciate the evidence and come to an independent conclusion, it should not do so as a matter of routine. In other words, if from the same set of evidence two views are possible and if the trial court has taken one view on the said evidence, unless the Appellate Court comes to the conclusion that the view taken by the trial court is either perverse or such that no reasonable person could come to that conclusion or that such a finding of the trial court is not based on any material on record, it should not merely because another conclusion is possible reverse the 3 finding of the trial court. [See : M/s. Mohanlal Hargovind Dass vs. Ram Narain & Ors. (1979 (3) SCC 279), State of Punjab vs. Balraj Singh alias Chhajju (1978 (3) SCC 129), State of Maharashtra vs. Wasudeo Ramchandra Kaidalwar (1981 (3) SCC 199) and Ram Kumar Pandey vs. State of Madhya Pradesh (1975 (3) SCC 815)]. In the instant case also we find that the trial court had taken a view which the High Court has not held to be either perverse, unreasonable or a finding which is not based on evidence, still on re-appreciation of the evidence, the High Court came to a different conclusion which on facts of this case and on the basis of the ratio of the law laid down by this Court in the abovecited cases cannot be sustained. 6. In the case of M.C.Ali and anr. v. State of Kerala, (2010) 4 SCC 573, it has been observed by Hon’ble Supreme Court that if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the findings of acquittal and placed reliance on the judgment in the case of Chandrappa v. State of Karnataka, (2007) 4 SCC 415 in which it has been held as under - 42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. 4 (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 7. In the light of above principle of law as laid down by the Hon’ble Supreme Court, this Court is required to examine the evidence available on record with great care and caution. The complainant has filed the complaint inter alia on the premise that the respondent has received Rs.5,50,000/- as loan from him and in discharge of such debt, issued the disputed cheque in his favour. Factum of issuance of cheque, its dishonour on account of insufficient fund, issuance of legal notice and filing of complaint within the stipulated time frame as prescribed under Section 138 of N.I.Act appears to have been proved on the basis of evidence available on record. This Court has to ascertain as to whether the cheque was issued in discharge of any legally enforciable debt or liability. This Court is also required to see as to whether presumption in favour of complainant under Section 139 of N.I.Act is attracted in the case in hand or the respondent was able to rebutt the presumption. 8. The respondent brought a defence that he has received Rs.25,000/- from the complainant as loan for his domestic need. In view of that the complainant demanded a blank cheque from him. He gave the blank cheque to the complainant. Within one month, the said amount was to be returned. When he failed to do so, the complainant demanded interest on it for which further one month time was sought for. The loan amount was returned with daily installment of Rs.1000/- and the entire amount has been paid back. As the interest on the said amount could not be paid, the blank cheque was not returned and it was misused by the complainant. 9. In order to prove its case, the complainant examined himself as PW1. In his 5 evidence he has stated in the line of his complaint. He deposed that the respondent has borrowed Rs.5,50,000/- in the name of his firm. The cheque was dishonoured on account of insufficient fund in the bank account of the respondent. After giving the legal notice demanding the amount and on non-payment of the amount, the complaint was filed. In his cross-examination, he admits that in his complaint, he has not mentioned the date on which he has given the amount to respondent. He voluntarily states that he has submitted the account. He admits that in the complaint, he has not mentioned the installment dates on which the amount was given to the respondent. He also admits that in the account (Ex.P/7), the signature of the person who has prepared is not there. He has also admitted that in his income tax return, no entry is made in respect to Rs.5,50,000/- given to the respondent on borrowing. Other suggestions were denied by him. 10. Respondent examined himself as DW1. He deposed in the line of his defence. He states that he had borrowed Rs.25,000/- from complainant for his domestic need in the month of November, 2011, for which the complainant demanded a blank cheque which was given by him. The complainant assured him to return the amount in daily installment of Rs.1,000/-. The cheque was demanded by him it was not returned. After filing the amount in the cheque of Rs.5,50,000/-, the case is filed. 11. From the evidence available, it is apparent that the complainant says that the amount of cheque was borrowed by respondent whereas the respondent says that only Rs. 25,000/- was borrowed which was returned. The cheque was given as security. The learned JMFC accepted the version of the complainant and disbelieved, the respondent’s defence and held him guilty of offence under section 138 of N.I. Act and sentenced him to 1 year rigorous imprisonment. The learned JMFC also awarded compensation of Rs. 5,50,000/- in faovur of complainant in default respondent to serve 6 months additional rigorous imprisonment. An appeal having been preferred by the respondent. 12. The learned appellate Court held that complainant could not prove its capacity to lend the borrowed amount. The defence of respondent appears to be probable defence. It has also been held that the complaint of the complainant is 6 suspicious and the he could not prove the case beyond reasonable doubt. The learned appellate Court acquitted the respondent giving benefit of doubt. The analysis of evidence by the learned appellate Court is more probable than the learned JMFC. The complainant was required to prove that the cheque was given in discharge of legally enforceable debt or liability. The complainant on the evidence available on record failed to discharge this burden. 13. Learned counsel for the complainant argued that as the signature of the respondent on the cheque is not in dispute hence presumption under Section 139 of N.I. Act will come into play that it is given against discharge of legally enforceable debt or liability. It is true that there is a statutory presumption under Section 139 of N.I. Act, however, the same is rebuttable one. Dealing with question of statutory presumption as under Section 139 of N.I. Act, Hon’ble Supreme Court in case of Krishna Janardhan Bhat Vs. Dattatraya G. Hedge reported in (2008) 4 SCC 54 held as under :- “30. The proviso appended to the said section provides for compliance of 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. 34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. 35. A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of 7 the parties together with their legal requirements are required to be taken into consideration.” 14. Taking into consideration the above stated authority and on deep analysis of evidence in the opinion of this Court the learned appellate Court has not committing any irregularity in passing the impugned judgment. With due respect the authority cited by learned counsel for appellant does not fit into the facts of the case and is of no help to appellant. In the result appeal sans merit and is hereby dismissed. Sd/- (Sachin Singh Rajput) JUDGE Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.08.06 17:22:13 +0530