1 2025:CGHC:18014 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 120 of 2021 1 - Jay Prakash Singh S/o Nagendra Singh Aged About 40 Years Patarapali, Transport Nagar, Raigarh, Taluka, Raigarh, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh ... Appelant (s) versus 1 - Shiv Kumar Singh S/o Shri Jay Narayan Singh Aged About 39 Years Village Shivpuri Pair, Whaya Panjwara P.S. Dhoriya, District Banka (Bhiar) Pin 813110, At Present R/o City Plaza, Flat No. 203, Kotra Road, Raigarh Chhattisgarh ... Respondent(s) For Appellant(s) : Ms. Vidhi Matlani, Advocate on behalf of Mr. Sanjay Agrawal, Advocate For Respondent(s) : Mr. Hari Agarwal, Advocate SB : Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 21/04/2025 SHYNA AJAY Digitally signed by SHYNA AJAY Date: 2025.04.23 15:58:07 +0530 2 1. This Acquittal Appeal has been preferred by the appellant/complainant against the judgment dated 24.2.2021 passed by the Third Additional Sessions Judge, Raigarh District Raigarh (CG) in Criminal Appeal No.175/2019, which, in turn, arises out of the judgment dated 28.11.2019 passed by the Judicial Magistrate First Class, Raigarh, District Raigarh in Complaint Case No.165/2018. By the impugned judgment, the Appellate Court acquitted the respondent/accused under Section 138 of the Negotiable Instruments Act, 1881 (in short “the NI Act”). 2. As per the averments in the complaint, both the complainant/appellant and the accused/respondent were having good relations with each other and on account of such relations, the complainant advanced a loan of Rs. 5 lakhs in cash to the respondent/accused on 15.2.2017 after executing an agreement (not filed and proved). It has been further averred that the said amount had to be returned by the respondent/accused by 15.4.2017 and for payment of the aforesaid amount, the respondent/accused issued a post dated cheque of Rs.2,50,000/- and for the remaining amount, his wife gave a cheque of Rs.2,50,000/-. On 06.11.2017, when the complainant presented the subject cheque (Ex.P/2) for encashment, it got dishonoured vide Ex.P/1, against which, a legal notice was sent vide Ex.P/3. However, even after such issuance of notice, the cheque amount was not paid, therefore, a complaint case was filed. 3. The complainant examined himself. In the statement recorded under Section 313 of the Cr.P.C, the respondent/accused pleaded that he has 3 been falsely implicated, however, he did not adduce any defence evidence. 4. The learned Judicial Magistrate First Class, Raigarh convicted the accused/respondent by the judgment 28.11.2019, however, the same was reversed by the Appellate Court vide the impugned judgment dated 24.2.2021 and thereby, acquitted the accused/respondent. Hence, this Acquittal Appeal has been filed by the appellant/complainant. 5. Learned counsel for the appellant would submit that the Appellate Court has not appreciated the evidence in proper perspective and without assigning any cogent reasons, wrongly reversed the well merited judgment of the trial Court. Learned counsel for the appellant would place reliance on the matter of Ashok Singh Vs. State of Uttar Pradesh and another, reported in 2025 SCC OnLine SC 706 and submit that there is legal presumption under Sections 139 and 118 of the NI Act. Hence, learned counsel for the appellant prays to allow the appeal. 6. Per contra, learned counsel for the respondent/accused would submit that the complainant has failed to establish any nexus with the Proprietor of Vaibhavi Enterprises, who issued the impugned cheque (Ex.P/2) in favour of the complainant. He would submit that as the cheque was issued by the Proprietor of Vaibhavi Enterprises, the complainant ought to have examined any employee of the concerned Bank to prove that the present respondent/accused is operating the subject account in the Bank. However, no such evidence has been 4 adduced by the complainant, therefore, the view taken by the trial Court is a possible one, which needs no interference. Learned counsel for the respondent would place reliance on the matter of Aparna A. Shah Vs. Sheth Developers Private Limited and another, reported in (2013) 8 SCC 71, wherein, it has been categorically held that only the drawer of the cheque can be prosecuted. He submits that in the instant case, the complainant has failed to prove as to who is the drawer of the cheque as the respondent/accused has categorically denied issuance of the cheque. 7. Heard learned counsel for the parties and also perused the record of the case carefully. 8. Admittedly, in the instant case, the impugned cheque (Ex.P/2) has been issued by the Proprietor of Vaibhavi Enterprises in favour of the complainant. In the evidence adduced by the complainant, he has failed to establish any nexus with the Proprietor of Vaibhavi Enterprises and further failed to prove that the respondent/accused is the Proprietor of the aforesaid concern or signatory of the impugned cheque. 9. In view of the law laid down in the matter of Aparna A. Shah, it is quite evident that only the drawer of the cheque can be prosecuted. However, in the present case, the complainant has failed to prove beyond reasonable doubt that the respondent/accused is the drawer of the cheque. Further, the respondent/accused has denied the signature on the cheque or any relation with the Vaibhavi Enterprises. Since the said fact is a disputed fact, the onus is on the complainant to prove 5 such fact. 10. For the foregoing, this Court is of the opinion that the findings recorded by the Appellate Court are just and proper, which do not suffer from any infirmity or illegality warranting any interference by this Court. 11.Resultantly, the Appeal is dismissed. Sd/- (Deepak Kumar Tiwari) Judge Shyna