1 2025:CGHC:12229 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 284 of 2024 Order Reserved on : 05.12.2024 Order Delivered on : 12.03.2025  Moh. Iftekhar Raza S/o Shri Haji Mohammad Ayub Aged About 44 Years R/o Chameli Chowk, Dhamtari, Tahsil And Dist - Dhamtari, Chhattisgarh. (Complainant) ... Appellant versus  Ratnesh Jain S/o Late Basantal Jain Aged About 60 Years R/o Ratnabandha Road, Dak Banglwa Ward, Dhmatari, Dist - Dhamtari, Chhattisgarh. ... Respondent For Appellant : Mr. Akhtar Hussain, Advocate For Respondent : Mr. Hemant Kumar Agrawal, Advocate Hon'ble Shri Justice Narendra Kumar Vyas (CAV Judgment) 1. The appellant has filed the present acquittal appeal under Section 378(4) of the Code of Criminal Procedure, 1973 against the order dated 18.03.2024 (Annexure A/1) passed by the learned Judicial Magistrate First Class Dhamtari, District - Dhamtari (C.G.) in Complaint Case No. 98/2021 by which the learned trial Court has dismissed the complaint case filed under Section 138 of Negotiable Instrument Act, 1881 and acquitted the respondent/accused from the charges. MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.03.12 12:16:22 +0530 2 2. Brief facts of the case are that the complainant filed a complaint under Section 138 of Negotiable Instruments Act, 1881 which is registered as Complaint Case No. 98/2021 mainly contending that: a. An agreement was executed between the complainant and accused for sale of land bearing its Khasra No. 1284/3 area 0.405 situated at Patwari Halka No. - 31 of village - Soridbhat, District Dhatmari (C.G.). The accused for discharge of liability has given a cheque bearing No. 000017 dated 30.06.2020 amounting to Rs. 30,00,000/- (thirty lakh) of the Bank wherein the accused is maintaining his account i.e. Bandhan Bank, Branch Dhamtari (C.G.). The complainant has presented the said cheque before the Bandhan Bank, Branch Dhamtari in his account number 50170006170859 on 25.09.2020, but the same was dishonored with an endorsement “due to insufficient fund”. The cheque was received by the complainant from the bank alongwith his forwarding memo, thereafter, the complainant has sent a legal notice on 07.10.2020 to the respondent and the same has been received by respondent/accused on 08.10.2020, but the accused failed to pay the amount within time period as prescribed under the Negotiable Instruments Act, thereafter the complainant has filed the complaint under Section 138 of Negotiable Instruments Act, 1881. b. The complainant to substantiate his case has exhibited documents: Cheque (Exhibit P/1), Bank Deposit Form (Exhibit P/2), Return Memo (Exhibit P/3), Registered Notice (Exhibit P/4), Postal Receipt (Exhibit P/5) and Closed Envelope (Exhibit P/6). The complainant examined himself by way of an affidavit 3 as required under Section 145 of Negotiable Instruments Act, 1881 reiterating the contention raised in the complaint. The witness was cross-examined wherein he has admitted that he has not submitted any document with regard to transaction pertaining to land. He has also stated that he has sent a notice to the accused and the post office persons have informed him with regard to the position of service of notice and voluntarily stated that accused has informed him about notice. The witness has denied that no payment has been given to the accused and also denied that he has submitted a false complaint. 3. The accused has not examined any witness but his statement under Section 313 Cr.P.C. was recorded wherein he pleaded false implication and has stated that he never gave any cheque to the complainant. He has also stated that no legal notice was received by him. The learned vide impugned judgment dated 18.03.2014 has dismissed the complaint and acquitted the accused. Being aggrieved with this judgment of acquittal the appellant has filed this acquittal appeal. 4. The learned counsel for the appellant would submit that the learned trial Court has committed illegality in discharging the accused on the count that the complainant is unable to prove that cheque was given towards any debt or liability. In fact, the complainant in clear terms have proved that cheque was given towards transaction of land, as such, presumption should have been drawn in favour of the complainant under Section 139 of N.I. Act, 1881. He would further submit that once the complainant has proved that the cheque was given towards debt or liability then 4 burden lies on the accused to rebut the same by evidence on probabilities which he utterly failed to do as no evidence to this effect was led by the accused. He would further submit that the statement under Section 313 of Cr.P.C. only clarifies the circumstances against the accused which cannot be said to discharge of burden or rebuttal of presumption. Thus, he would pray for allowing the appeal. In the appeal for the first time the appellant has filed copy of the agreement executed between the complainant and the accused as (annexure A/4) dated 20.05.2020 and statement of account maintained by the complainant wherein a withdrawal of Rs. 25,00,000/- has been shown by Ratnesh Jain to substantiate that the cheque was given towards debt or liability. 5. Per contra learned counsel for the respondent would submit that since the complainant has not proved that the cheque was given towards any liability which is paramount consideration for attracting the offence under Section 138 of N.I. Act as such, the trial Court has recorded the finding which cannot be said to suffer from perversity or illegality which warrants interference. He would further submit that the appellant to fill up the lacuna has filed the copy of the alleged agreement as well as statement of account which is not permissible in view of well settled legal position that additional evidence cannot be permitted when it would amount to filling of glaring lacuna in the case. To substantiate his contention he has referred to the judgment of Hon’ble Supreme Court in case of H.N. Jagdish vs. R. Rajeshwari reported in 2019 (16 ) SCC 730. He would further submit that the complainant has not placed any material on record to prove that the cheque was given towards 5 liability, as such also the finding recorded by the trial Court is legal and justified which does not warrant interference and would pray for dismissal of the appeal. To substantiate this submission he has referred to the judgment of the Hon’ble Supreme Court in case of B. Krishna Reddy Vs. Syed Hafeez (Died) Per Legal Representative Naseema Begum and Another reported in 2020 (17) SCC 488, Basalingappa vs. Mudibasappa reported in 2019 (5) SCC 418, John K. Abraham vs. Simon C. Abraham and Another reported in 2014 (2) SCC 236, K. Subramani vs. K. Damodara Naidu reported in 2015 (1) SCC 99 and Dattatraya vs. Sharanappa reported in 2024 (8) SCC 573. 6. Now this Court has to consider whether agreement dated 20.05.2020 and the statement of bank account can be taken into consideration to record a finding whether cheque was given towards any debt or liability or not. 7. The learned counsel for the respondent vehemently objected for considering these documents and would submit that these document cannot be considered as it will amount to filling of the lacuna by additional evidence in light of judgment passed by the Hon’ble Supreme Court in case of Jagdish (Supra). This submission deserves to be rejected as the facts of the case of Jagdish (Supra) are distinguishable on the facts that in that case the notice under Section 138 of N.I. Act was not placed on record which is necessary precondition for filing of complaint under Section 138 of the N.I. Act, therefore, it was incumbent upon the complainant to prove the same, as such the said notice is allowed to be taken on record then it was held that it is a filling of the 6 lacuna and accordingly, it was not allowed whereas in the present case though the agreement was not placed on record, but the oral evidence with regard to transaction of land and transfer of money are already on record of the trial Court, as such the oral evidence and notice under Section 138 of N.I. Act or other documents with regard to dishonor of cheque was available on record. There was some oral evidence with regard to liability of the accused, but documentary evidence was not available with the trial Court, as such, if this document is taken on record, it will not amount to filling of the glaring lacuna, it may be merely irregularity which may be curable. Even otherwise, the respondent in this appeal has also placed on record the copy of the complaint dated 04.12.2024 wherein he has mentioned about alleged fraud in preparation of the agreement, thus, there is a dispute with regard to existence of an agreement which is now required to be ascertained by the Court. Similarly, the statement of account of the complainant has been placed on record wherein withdrawal of Rs. 25 Lakhs has been shown in the name of Ratnesh Jain accused, but the said document has not been placed before the trial Court though the complainant in his cross-examination before the trial Court has clearly stated that the statement of bank account is available with him. 8. The Hon’ble Supreme Court in case of Zahira Habibullah H. Sheikh and another vs. State of Gujarat and Others reported in 2004 (4) SCC 158 has considered the provisions of Section 391 of the Cr.P.C. which permits the appellate Court to take further evidence. The Hon’ble Supreme Court in paragraph 21 has held 7 as under:- “21. Section 391 of the Code is intended to sub-serve the ends of justice by arriving at the truth and there is no question of filling of any lacuna in the case on hand. The provision though a discretionary one is hedged with the condition about the requirement to record reasons. All these aspects have been lost sight of and the judgment, therefore, is indefensible. It was submitted that this is a fit case where the prayer for retrial as a sequel to acceptance of additional evidence should be directed. Though, the re-trial is not the only result flowing from acceptance of additional evidence, in view of the peculiar circumstances of the case, the proper course would be to direct acceptance of additional evidence and in the fitness of things also order for a re-trial on the basis of the additional evidence.” 9. Again the Hon’ble Supreme Court in case of Ajitsinh Chehuji Rathod vs. State of Gujarat & Another reported in 2024 INSC 63 in paragraph 9 has held as under:- “9. At the outset, we may note that the law is well-settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391 CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non- recording of such evidence may lead to failure of justice.” 10. From the abovestated legal position and considering the fact that oral evidence with regard to the transaction relating to land has already been placed on record and in the appeal the respondent has also filed a copy of complaint dated 04.12.2024 to the Police Station regarding alleged fraud committed in execution of the alleged agreement. The complainant has also submitted copy of the bank account wherein the name of respondent accused has been mentioned, as such these documents are necessary for just and proper adjudication of the case and non-consideration of such 8 additional evidence leads to failure of justice, therefore, I am of the view that the document agreement dated 20.05.2020 and complaint filed by the respondent dated 04.12.2024 as well as the statement of bank account are taken on record of the trial Court and the matter is remitted back to the trial Court for deciding the matter afresh by considering the agreement, the complaint made by the respondent, the bank account and all other documents already available on record in accordance with law. Consequently the impugned judgment deserves to be quashed and accordingly, it is quashed. 11. It is made clear that the trial Court will decide the case after taking the document on record in accordance with law afresh after giving opportunity of hearing to all the parties to examine their evidence and to prove their case. 12. A copy of the order be forwarded to the Judicial Magistrate First Class to take a decision in accordance with law. Since the parties have already entered appearance before this Court, no notice is required to be issued to them. Both parties are directed to appear before the trial Court on 28th April, 2025. 13. With aforesaid observation and direction, present acquittal appeal is allowed. Sd/- (Narendra Kumar Vyas) Judge Manish