1 2025:CGHC:951 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No.105 of 2014 Judgment reserved on : 13.11.2024 Judgment delivered on : 07.01.2025 1 - Satinder Kohli S/o Shri Amarnath Kohli Aged About 55 Years, Businessman by Profession, R/o Punjab Auto, M.G. Road, Raipur City, Tah. and Distt. Raipur, Chhattisgarh Appellant versus 1 - Rathore Medical Stores S/o Through Its Proprietor Ashok Rathore S/o Laxminarayan Rathore, R/o A House At Rathore Chowk, Raipur City, Tah. and Distt. Raipur, Chhattisgarh Respondent For Appellant : Mr. Sourabh Sharma and Ms. Harneet Kaur Khanuja, Advocates For Respondent(s) : Mr. D. K. Gwalre, Advocate Hon’ble Smt. Justice Rajani Dubey C A V Judgment 1. This acquittal appeal has been preferred by the appellant against the judgment of acquittal dated 29.11.2013 passed by the learned JMFC, Raipur (C.G.) in Complaint Case No.197/2013, whereby the respondent has been acquitted of the charges under Section 138 of NI Act. Digitally signed by RAMAKANT NIRALA 2 2. Brief facts of the case are that the accused Firm M/s Rathore Medical Stores is a proprietary firm represented through its Proprietor Ashok Rathore was facing hard days and obtained financial assistance of Rupees 75000/- (Rupees Seventy Five Thousand) from the Complainant/appellant. With intent to discharge the pecuniary liability of loan, the accused firm has handed over two cheque bearing No.607598 dated 21.01.2013 worth Rs.50,000/- (Rupees Fifty Thousand) and another Cheque No.611517 dated 21.02.2013 worth Rs. 25,000/- (Rupees Twenty Five Thousand). The complainant/appellant herein submitted the above two cheques for clearance in his Bank account, Central Bank of India, Main Branch, Raipur on 14.02.2013 but both the cheques got dishonored due to insufficient funds in account of the accused/Respondent herein. At the request of the accused/respondent, the complainant/appellant has once again submitted the above cheques for clearance in his Bank Central Bank of India Main Branch, Raipur on 26.02.13 but the above cheques were again returned unpaid on account of insufficient balance. Thereafter the complainant sent demand notice through counsel by a registered mail on 06.03.2013, which was served upon the Accused / Respondent on 11.03.2013, but the Accused/Respondent has neither replied the Legal Notice nor complied with the requisites of above Demand Notice. Thereafter the Complainant/Appellant filed his Complaint before the learned Trial Court and the learned Trial Court after appreciating the oral 3 and documentary evidence available on record acquitted the respondent of the aforesaid charges, hence the present appeal has been filed by the appellant. 3. Learned counsel for the appellant submits that the impugned Judgment is perverse in law being mere based on conjuctures and surmises and passed in a cursory manner. The learned Trial Court has utterly failed to understand the factual matrix of the case and come to conclusion that the questioned cheques were given for the collateral security of the loan simply for the reason that some of the cheques of the same series were presented in the year 2006 but as to what number of cheques were presented and what number of cheques remained has not been stated. There is no evidence available on record that accused respondent has surrendered the cheque book to the concerned bank and stopped operating the account thereof and also failed to establish that bank has stopped dealing with the cheque book series issued in the year 2006 for purpose of withdrawal in year 2012-2013. The learned Trial Court has failed to understand that the cheques can be presented at any time until the account is alive, whereas the date of the issuance of the same and its serial numbers may varies. The Trial Court has erred in law by not drawing inference against the factum of the issuance of the questioned cheques and duly signed by the Accused/Respondent for the pecuniary liability of the loan and utterly failed to see that without discharging the liability of the loan, the co-extensive 4 liability accepted in shape of a collateral security can't be discharged. There is neither any oral nor documentary evidence available on record showing that the respondent has discharged the loan advanced by the appellant. Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of Rajesh Jain vs Ajay Singh, reported in AIR 2023 SC 5018. 4. Learned counsel for the respondent supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the oral and documentary evidence available on record and has rightly acquitted the respondent of the aforesaid charges and considering the limited scope of interference in appeal against acquittal, this appeal is liable to be dismissed. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matters of K. Prakashan vs P. K. Surenderan, reported in (2008) 1 SCC 258, Krishna Janardhan Bhat vs Dattatraya G. Hegde, reported in (2008) 4 SCC 54 and Kumar Exports vs Sharma Carpets, reported in (2009) 2 SCC 513. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the appellant/plaintiff filed a complaint case under Section 138 of the NI Act against the respondent Rathore Medical Store through its 5 proprietor Ashok Rathore for dishonorment of cheques dated 21.01.2013 and 21.02.2013. 7. The appellant examined himself before the Trial Court as appellant/plaintiff’s witness No.1. The appellant admitted in para 15 of his cross-examination that at present there is a clothe shop where Rathore Medical Store was earlier located. He also admitted that the shop has been running for the last 5 years. The respondent/accused also examined one witness Ashok Sharma being manager DW-1 who stated that he managed bank account of Rathore Medical Store from 28.09.2005 to 04.04.2013, certified copy of his statement is Ex-D/1 and as per this account, last cheque was presented on 11.02.2008. 8. The learned Trial Court appreciated the oral and documentary evidence of both the parties and found that the cheque was issued in the name of medical store which was closed in the year 2008-09 and as per complainant, he gave loan to the respondent in the year 2012 and presented cheque in the year 2013, as such it is clear that these cheques were given only for security of loan and the complainant misused those cheques and filed complaint. 9. The Hon’ble Apex Court in Kumar Exports (supra) held in para 20 as under:- “20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt 6 existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act.” 10. In light of the above, in the present case also, the appellant himself admitted that the medical store was shut down for last 5 years and even then he gave loan to medical store cannot be acceptable, as such the learned Trial Court has rightly appreciated the oral and documentary evidence available on record. The finding recorded by the learned Trial Court is neither perverse nor contrary to the record. 7 11. This appeal is without any merit and is liable to be and is hereby dismissed accordingly. Sd/- Rajani Dubey Judge Nirala