1 2025:CGHC:26955 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 278 of 2025 1 - Rajiv Singhal S/o Late Shrikrishna Singhal Aged About 38 Years Proprietor Of Ganapati Industrial Service R/o 26, Commercial Complex. Nehru Nagar (East) Bhilai Police Station Supela, District- Durg (C.G.) (Through In The Impugned Order Mentioned Shrikrishna Singhal Father Of Present Appellant, Who Died On 11.08-2014, Thus The Present Appeal Is Filed By Rajiv Singhal, Proprietor Of Ganapati Industrial Service) (Complainant ) ... Appellant versus 1 - Mahesh Wadhwa S/o Chandra Pal Aged About 59 Years R/o Dwarka Mai 03/F House No. 31, A-01 Sahyog Parakh Mahaveer Nagar Raipur District - Raipur (C.G.) (Accused ) ... Respondent For Appellant : Mr. Ashish Surana, Advocate appears through VC For Respondent : None though served Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 23/06/2025 PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.06.24 18:10:49 +0530 2 1. This Acquittal Appeal has been preferred against the judgment dated 11.08.2014 passed by the 6th Additional Sessions Judge, Durg in Criminal Appeal No.316/2013, reversing the judgment dated 30.11.2013 passed by the Judicial Magistrate First Class, Durg in Criminal Complaint Case No.577/2011 in which the respondent was convicted under Section 138 of the NI Act and awarded sentence for 6 months simple imprisonment and compensation of Rs.1,20,000/-. By the impugned judgment, the respondent/accused has been acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the NI Act”) by the Appellate Court. 2. Brief facts of the case are that complainant is the proprietor of Ganapati Industrial Services and the respondent/accused purchased M.S. casing pipe worth Rs.1,10,023/- from the appellant. The respondent paid cash Rs.10,023/- and gave a cheque dated 13.07.2011 of Rs.1,00,000/- (Ex-P/2). However, when the said cheque was presented for encashment vide Ex-P/3, it was reported by the Bank that the same got dishonoured due to insufficient funds. Thereafter, a legal notice dated 21.07.2011 (Ex-P/4) was sent. However, even after the said notice, when the payment was not made by the respondent, the complaint was filed. 3 3. In order to prove its case, the complainant- Shrikrishna Singhal has examined himself and exhibited 6 documents, including the cash/credit bill (Ex-P/1). 4. During the trial, the respondent/accused abjured his guilt and claimed to be tried and he has examined himself as DW-1 and Virendra Sahu (DW-2) and exhibited 2 documents (Ex-D/1- Invoices and Ex-D/2- Delivery Challan). 5. Learned Judicial Magistrate First Class, after evaluating the evidence available on record, convicted the respondent/accused, but the same was reversed by the Appellate Court. Hence this Appeal. 6. Learned counsel for the appellant submits that the learned Appellate Court has not appreciated the evidence in its proper perspective and wrongly reversed the cogent finding recorded by the trial Court, which is well merited, therefore, he prays to allow the Appeal and set aside the finding recorded by the Appellate Court and convict the respondent/accused. 7. Heard learned counsel for the appellant and perused the record with utmost circumspection. 8. Indisputably, in the instance case, the cheque (Ex-P/2) was issued in the name of Ganapati Industrial Services. Late Shrikrishna Singhal examined himself and deposed that he was a proprietor of the said concern but during the proceeding, Shrikrishna Singhal died, so his son has carried the matter forward. 4 9. When a query has been put to the counsel for the appellant as to whether any document has been filed or not, he fairly admits that no such document has been filed by the complainant but to establish the nexus with the de fecto complainant, Shrikrishna Singhal is the sole proprietor of the Ganapati Industrial Services, statement was filed. 10.In the matter of Milind Shripad Chandurkar vs. Kalim M. Khan and another1, it has been held that a mere statement in the in the affidavit is not sufficient to meet the requirement of law and the relevant para-26 reads as under:- “26.In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole proprietor of the concern and being so, he could also be payee himself and thus, entitled to make the complaint. The appellant miserably failed to prove any nexus or connection by adducing any evidence, whatsoever, worth the name with the said firm, namely, Vijaya Automobiles. Mere statement in the affidavit in this regard, is not sufficient to meet the requirement of law. The 1 (2011) 4 SCC 275 5 appellant failed to produce any documentary evidence to connect himself with the said firm.” 11.Furthermore, the respondent/accused has taken a specific defence, though he has purchased the casing pipe from the appellant concern, but no delivery has been made and there is usual practice of issuing a delivery challan and for such aspect, the respondent/accused has examined himself and one witness, Virendra Sahu (DW-2) and also produced 2 documents (Ex-D/1- Invoice and Ex-D/2- Delivery Challan). Respondent has further deposed that only for the security, he has issued the cheque, but the goods have not been delivered by the complainant, therefore, the payment was not made and as such there is no legally recoverable debt against him. Even in the case of credit, a ledger has been maintained, but during the trial no such ledger has been filed or proved. 12.It is well settled that in a case where two views are possible, although the view of the Appellate Court is a more probable one. The said principle has been reiterated in the matter of Budh Singh vs. State of U.P.2, wherein it was held that in a matter of Appeal against acquittal, the High Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. 2 (2006) 9 SCC 731 6 However, while dealing with a judgment of acquittal, it is free to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. 13.Further, in the matter of V.N. Ratheesh vs. State of Kerala3, the Hon’ble Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Hon’ble Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is further held that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the 3 (2006) 10 SCC 617 7 evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offence or not. It was also observed that the principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 14.In view of the aforesaid settled principles and considering the facts and circumstances of the case, this Court is of the opinion that the view taken by the Appellate Court is possible one. 15.Resultantly, this Acquittal Appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Priyanka