1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 195 of 2018 1 - Kuldeep Singh Chabra S/o Gurudayal Singh Aged About 42 Years R/o Village Ward No. 10, Basna, Police Station And Tehsil Basna, District Mahasamund, Chhattisgarh ... Appellant(s) versus 1 - Arjunlal Tandi S/o Ganeshram Tandi Aged About 47 Years R/o Village Jevra, Police Station And Tehsil Basna, District Mahasamund, Chhattisgarh ... Respondent(s) For Appellant (s) : Shri Manoj Paranjpe and Shri Shashwat Mishra, Advocates For Respondent(s) : Ms. Prachi Singh, advocate on behalf of Shri Shikhar Sharma, Advocate. ({Hon’ble Shri Justice Sachin Singh Rajput}) Judgment on Board 28/04/2025 What is assailed in this appeal filed under Section 378 (4) of CrPC is the judgment dated 30/01/2018 passed in complaint case No.579/2014 passed by the Judicial Magistrate, 1st Class, Bastar, District–Mahasamund (CG) by which the respondent was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’). 2. Facts of the case is that the appellant and respondent had good relationship. Respondent, in the month of November, 2012 obtained a loan of Rs.2 lakhs from 2 the appellant with an assurance that the same would be returned by February, 2013. When the appellant demanded back the loan amount, the respondent gave a cheque bearing No.203231 dated 20/03/2013 of Rs.2 lakhs of Chhattisgarh Gramin Bank, Branch Basna. The cheque was presented by the appellant in his account maintained in Dena Bank, Branch Basna and the same cheque was dishonored on account of insufficient fund in the bank account of the respondent on 25/03/2013. The intimation of dishonor of the cheque was given to the respondent by the appellant through his advocate by registered notice dated 17/04/2013 and demanded to refund the cheque amount. The respondent assured the appellant that he will return the said amount within 2 months and therefore, the appellant had not filed any complaint in respect of dishonor of cheque No.203231. Despite of that, the respondent did not pay back the loan amount and again gave a cheque of Rs.2 lakhs bearing No.748627 of District Cooperative Central Bank Ltd., Raipur, Branch Basna dated 28/05/2013. The said cheque was deposited by the appellant in his bank account at Dena Bank, Branch Basna and the bank informed on 06/04/2013 that the cheque was dishonored on account of insufficient balance in the bank account of the respondent. Thereafter, a notice through his advocate was sent by the appellant on 12/06/2013 and despite of receipt of notice, the respondent has not paid back the amount. Therefore, a complaint case was filed before the learned Judicial Magistrate First Class (JMFC), Basna, District – Mahasamund. 3. Particulars of charge under Section 138 of the N.I. Act was read over to the respondent who denied the same and claimed to be tried. His statement under Section 313 CrPC was recorded in which he claimed innocence, false implication and examined Shrilal Sao in his defence. 4. Learned JMFC formulated points for determination which are as follows - 01. Whether the accused issue the disputed cheque to the complainant? 02. Whether the disputed cheque was presented before the bank for clearance within its validity period? 03. Whether the disputed cheque dishonoured? 04. Whether within thirty days after receipt of the return notice of dishonour of cheque by the bank, the complainant gave a written 3 notice to the accused for payment of the said amount? 05. Whether the accused has failed to pay the said amount in due course within 15 days of receipt of the said notice? 06. Whether the complaint was filed under the provisions of Section 142 of the Negotiable Instruments Act, 1881? 07. Whether the disputed cheque was given by the accused to the complainant for discharge of any debt or other liability either fully or partially? 08. Whether the accused denied the presumption raised against him under Section 139 of the Negotiable Instruments Act, 1881? 09. Conviction and sentence? 5. Learned JMFC decided point No.1, 4 and 8 in affirmative and point No.2, 3, 5, 6 and 7 in negative and ultimately, acquitted the respondent from the charge vide impugned judgment which led to filing of this appeal. 6. Learned counsel for the appellant argues that the finding of acquittal recorded by the learned JMFC is bad in law, contrary to the evidence and perverse. He submits that the learned JMFC gave a finding that the said cheque was given in lieu of legal liability and debt and therefore, acquittal of the respondent cannot stand to the scrutiny of this Court. He further submits that there is a presumption under Section 141 of the Evidence Act in favour of the appellant and against the respondent and therefore, the appeal may be allowed and the impugned judgment of acquittal of the respondent may be set aside. He prays that the respondent may be convicted for an offence under Section 138 of the NI Act and punished suitably. 7. Refuting the submissions, learned counsel for the respondent argued that even if point No.1 has been decided in favour of the appellant, the appellant failed to prove on record that it is the same cheque No.748627 which was submitted in his bank account for clearance. She submits that learned JMFC has categorically held from the cheque return memo (Ex.P/3), it not evident that cheque No.748627 was returned as there was no sufficient balance in the bank account of the respondent. Neither any cheque number is mentioned in Ex.P/3 nor any officer of the bank was examined to prove that cheque returning memo (Ex.P/3) was in respect of the cheque No.748627 allegedly given by the respondent. Therefore, 4 meritorious finding of acquittal recorded by the JMFC does not require any interference. 8. Learned trial Court though with respect to point No.2 gave a specific finding that the appellant could not prove that the cheque given by the respondent was dishonored. On perusal of Ex.P/3, it does not bear any cheque number. It also does not indicate that the said cheque was dishonored on account of insufficient fund in the bank account of the respondent. As per the case of the appellant, initially another cheque was also dishonoured which also indicates a cheque return memo from the bank account of the appellant as well as the bank account of the respondent. Here in this case, there is no detail of the cheque number which was dishonoured in cheque returning memo (Ex.P/3). For the reasons best known to the appellant, he did not examine any witness of the bank to substantiate that the cheque returning memo (Ex.P/3) was issued by his bank in respect of the cheque No.748627. 9. Considering such evidence on record, point no.2 was decided against the appellant which in the opinion of this Court is based upon proper appreciation of evidence. It is well settled position that when two views are possible, one favouring the accused shall be adhered to. The appeal therefore fails and is hereby dismissed. Sd/- (Sachin Singh Rajput) JUDGE Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.05.02 16:41:15 +0530