1 2025:CGHC:1740 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on 12.11.2024. Judgment Delivered on 10.01.2025. ACQA No. 225 of 2012 Deepak Pamnani S/o Shridhar Pamnani aged about 36 years, R/o Ware House Road , P.S. Civil Line Bilaspur , Distt. Bilaspur (C.G) ... Appellant Versus Kamal Kaushik S/o Devprasad Kaushik R/o Behind Durga Pandal Near Sai Mandir 27 Kholi , P.S. Civil Line Bilaspur ,Distt. Bilaspur (C.G.) ... Respondent For Appellant : Mr. Goutam Khetrapal, Advocate. For Respondent : Mr. Shyam Kumar, on behalf of Mr. Achyut Tiwari, Advocate. Hon'ble Smt. Justice Rajani Dubey CAV Judgment 1. This acquittal appeal is filed under Section 378 (4) of Cr.P.C by the appellant/complainant against the impugned judgment dated 18.05.2012 passed by the Judicial Magistrate First Class, 2 Bilaspur (Chhattisgarh) in Criminal Case No. 215/2012, whereby the learned trial Court has acquitted the respondent/accused of the charge for commission of offence under Section 138 of the Negotiable Instruments Act, 1881. 2. Brief facts of the case are that the appellant/complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 before the learned trial Court as the respondent Kamal Kaushik gave him Rs. 75,000/- vide cheque No. 008447 dated 16.06.2008, which was bounced on 17.06.2008 and the appellant presented the cheque to his Bank i.e., Corporation Bank on the same day. The Bank intimated the petitioner that the cheque was dishonoured because of insufficient funds, therefore on 12.07.2008, the appellant sent a legal notice to the respondent/accused and the same was received by him, despite receiving the legal notice, the respondent failed to pay the amount to the appellant, therefore, he filed the complaint under Sections 200, 202 of Cr.P.C. read with Section 138 of the Negotiable Instruments Act, 1881. The accused/respondent took the defence that there are differences in the handwriting of cheque Ex. P/01 and further took the defence that the cheque has not been dishonoured by the Bank on the ground of insufficient funds, but it was dishonoured due to closure of the account. The respondent did not take any defence in his entire cross-examination and he did not deliver the cheque vide Ex. P/01 to the appellant. As such, the respondent was wrongly acquitted by the learned trial Court. 3 So, the appellant/complainant filed the complaint case under Section 138 of the Negotiable Instruments Act, 1881 against the respondent before the Judicial Magistrate First Class, Bilaspur (C.G.). 3. In support of the complaint, the appellant/complainant examined himself as PW-01 along with another witness P.B. Jhumare PW- 02. 4. The learned trial Court after appreciating the oral and documentary evidence by judgment dated 18.05.2012, acquitted the respondent of the offence under Section 138 of the Negotiable Instruments Act, 1881. Hence, this acquittal appeal filed by the appellant/complainant. 5. Learned counsel for the appellant submits that the impugned judgment dated 18.05.2012 passed by the learned trial Court is bad-in-law, perverse, illegal, erroneous and contrary to the facts & circumstances of the case, therefore it is liable to be set aside. The respondent has been wrongly acquitted by the Court because he has not taken the defence that he did not deliver the cheque Ex. P/1 to the appellant. In entire cross-examination of PW-01 he has not cross-examined the witness or given any suggestion about the aforementioned cheque. Exs. P-5 to P-9 further show about receiving of the amount by the respondent, which has not been denied by the respondent/accused. The order sheet dated 4 18.05.2012 reveals that there was certain correction done in the Apradh Vivran Form, and thereafter the order sheet further mentions that the counsel for the complainant does not want to adduce any evidence, although it is clear that Mr. Shrivastava was not available at Bilaspur, therefore the learned trial Court even without hearing the parties, passed the impugned order and has not granted proper opportunity of hearing after correction in the Apradh Vivran Form. Even in the order sheet the signature of Mr. Shrivastava is not available. therefore, the impugned judgment is liable to be set aside. 6. Learned counsel for the appellant places reliance on the decision of Hon’ble Apex Court in the matter of Triyambak S. Hegde Vs. Sripad reported in (2022) 1 Supreme Court Cases 742. 7. Learned counsel for the respondent supporting the impugned judgment submits that the learned trial Court has minutely appreciated the oral and documentary evidence and rightly acquitted the respondent. As such, this judgment is well merited and this appeal being devoid of any merit is liable to be dismissed. 8. I have heard both the counsel for the parties and perused the material available on record. 9. From bare perusal of the record of learned trial Court it is evident that the appellant/plaintiff has examined himself and Manager P.B. 5 Jhumare to prove his case. The complainant Deepak Pamnani filed cheque vide Ex. P/01, notice Ex. P/02, Postel Raseed Ex. P/03, Acknowledgement Ex. P/04, Promissory note Ex. P/05 to Ex. P/09, registration certificate Ex. P/10 and authority letter of bank Ex. P/11 on which earlier Rs. 5,000/- was overwritten as Rs. 75,000/-. He also admitted that cheque was dishonoured with this note that account was closed. (PW-02) P.B. Jhumare, Manager of Sehkari Bank, Bilaspur stated that cheque Ex. P/1 bearing No. 008447 is from his Bank which was issued on 29.10.2003 and its account No. was 5268. The cheque was dishonoured on this ground that account was closed and he admitted seal of his Bank on A to A part. In para 11 of his cross-examination he stated that the account was closed on 13.04.2007 and cheque book was issued on 2003. It is clear from Ex. P/01 that cheque date was written as 16.06.2008 and as per (PW-02) P.B. Jhumare, account was closed on 13.04.2007 before issuing the cheque. The learned trial Court also appreciated this fact that complainant did not produce any document in this regard that when he got information about the dishonour of cheque. The complainant/appellant did not file Bank memo, so it is not proved by the complainant that on what date the cheque was dishonoured by the Bank. 10. The complainant Deepak Pamnani (PW-01) and Manager P.B. Jhumare (PW-02) stated that photocopy of Bank memo was filed by the complainant, but the learned trial Court rightly found that 6 the photocopy is not an admissible evidence and the complainant did not take any steps regarding secondary evidence and after appreciation of oral and documentary evidence, the learned trial Court rightly finds that the appellant/complainant has failed to prove this fact that the accused/respondent gave any cheque in his favour which was dishonoured by the Bank. 11. 11. The learned trial Court after appreciation of oral and documentary evidence acquitted the accused/respondent of the charges leveled against him in which this Court does not find any perversity or illegality warranting interference. 12. As such, this appeal being devoid of merit is liable to be and is hereby dismissed. Sd/- (Rajani Dubey) Judge Uttej