1 2025:CGHC:14925 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 486 of 2024 1 - Tarkeshwar Sahu S/o Late Ganga Ram Sahu Aged About 44 Years Resident Of Ward No. 42, Kanhaiyapuri, Kasaridih, Dist. Durg, C.G. ... Appellant versus 1 - Amit Lilhare S/o Nirbhay Das Lilhare Aged About 41 Years Resident Of Shyam Kunj, Ward No. 59, Hari Nagar, Dist. Durg, C.G. ... Respondent For Appellant : Mr. Rudranath Mukherjee, Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 27.03.2025 1. The appellant/complainant has filed present acquittal appeal under Section 378(4) of the Criminal Procedure Code assailing the order dated 28.09.2022 passed by learned Judicial Magistrate First Class, Durg, District Durg (C.G.) in Criminal Case No. 35279 of 2018 by which learned trial Court has dismissed the complaint filed by the appellant and acquitted the respondent/accused for commission of offence under Section 138 of the Negotiable Instrument Act, 1881 (in short “the N.I. Act, 1881”). BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2025.04.15 14:26:24 +0530 2 2. The brief facts reflected from the record are that due to cordial relationship between the appellant and the respondent the appellant/complainant, the complainant has given Rs. 1,00,000/- as lent to the respondent on 08.11.2017 by cash for domestic work and it was assured that he will return the same within 06 months but it was not returned and was making lame excuses. After repeatedly demanding the amount the accused has given two cheques amounting to Rs. 50,000/- bearing No. 397440 and 397442 dated 30.06.2018 drawn in the bank account maintained by him at State Bank of India, Malaviya Nagar, Durg wherein said cheques were bounced and returned with an endorsement “dishonored due to insufficient fund and difference in the signature”. The complainant through his counsel has sent a legal notice to the accused through registered mode to the accused on 23.08.2018 which was received by him on 24.08.2018 which was neither replied nor payment was made, therefore, he has filed a complaint under Section 138 of the the N.I. Act, 1881. 3. The appellant/complainant to substantiate his claim has exhibited documents namely dishonored cheque (Ex. P/1 & P/2), deposit slip (Ex. P/3 & P/4), bank memo wherein two reasons have been assigned as due to insufficient fund and drawer’s signature differs (Ex. P/5), registered notice (Ex. P/6), receipt (Ex. P/7) and acknowledgment (Ex. P/8) and also submitted copy of register maintained by the bank regarding intimation with regard to details of the bounced cheque. The appellant in his evidence has reiterated the stand taken by him in the complaint and the complainant was extensively cross-examined by the accused wherein he has admitted that he is working as an Advocate for 3 the last 13 to 14 years but he is not an income tax payee. It is also admitted that the respondent is working in share market and that is why he is known to the appellant. He also admitted that the SMC Global Stock Broking Company is involved in the investment business and he has opened the De-mat account with SMC Global Stock Broking Company. He has also admitted that he has given Rs. 1,00,000/- to the accused for opening of the De-mat account through cheque bearing No. 062380 and he has voluntarily stated that said amount of Rs. 1,00,000/- account is not related to Rs. 1,00,000/- which is in dispute in the present case. He has also admitted that before alleged transactions he was not known to the accused. The complainant has also examined the Bank Manager, S.B.I. and exhibited the documents wherein he has admitted that if the signature does not match then the cheque is returned back and it is not sent for payment proceedings. The accused has not examined any evidence but he was examined under Section 313 of Cr.P.C. and also exhibited documents related to statement of account of the complainant maintained by the investment company. The accused has examined one defence witness namely Amit Lilhare who has stated that the appellant has invested Rs. 1,00,000/- in SMC Global Stock Broking Company through De-mat account and for sometime the investment gives profit but later on due to up and down in the market the complainant suffered loss, thereafter, the appellant started demanding for the loss suffered by him. 4. Learned Judicial Magistrate First Class considering the evidence and material available on record has dismissed the complaint vide 4 impugned order. Learned trial Court while dismissing the complaint has recorded its finding in paragraph 18 that it seems that the complainant has invested Rs. 1,00,000/- and for investment how can a cheque be given by the franchise through the accused which creates doubt that cheque was given towards debt and liability which is paramount consideration to attract the provisions of Section 138 of the N.I. Act accordingly, it has dismissed the complaint. Being aggrieved with this dismissal of the complaint, the complainant has preferred the appeal. 5. Learned counsel for the appellant would submit that learned trial Court has committed illegality in holding that the cheque was not given towards liability as the complainant in clear terms has adduced the evidence before learned trial Court that the cheque was given as loan and to repay the loan said cheque was given which has been dishonored due to insufficient fund thus he would submit that findings recorded by learned trial Court suffers from perversity, illegality and warrants interference of this Court. 6. I have heard learned counsel for the appellant and perused the records. 7. The respondent/accused in his defence has exhibited the De-mat account of the complainant wherein lot of transactions have been carried out and the accused witness has categorically stated that in De-mat account at initial stage he has earned some profit but later on due to market fluctuation the appellant/complainant has suffered loss and the trial Court has also recorded its finding that the complainant has not placed any document on record to demonstrate that he has given Rs. 1,00,000/- in cash to the accused even no date has been 5 mentioned when the amount was paid to the complainant. The trial Court has also recorded its finding on the basis of evidence of defense witness and on the basis of De-mat account submitted by the accused. To demonstrate that the complainant has given the said amount for investment, no evidence was brought on record by the complainant to rebut the same and to rebut that the De-mat account is separate thing and only oral evidence was placed on record which is not sufficient to prove that the accused has given any cheque towards liability. So far as judgment referred to by the learned counsel for the appellant in case of Bir Singh Vs. Mukesh Kumar reported in Criminal Appeal Nos. 230-231 of 2019 decided on 06.02.2019 also supports the case of the accused as in that case the Hon’ble Supreme Court has taken a view that it is for the complainant to first prove that the cheque was given towards liability whereas in the present case, the complainant is unable to prove that the cheque was given towards any liability. 8. Considering the entire facts and evidence on record, I am of the view that learned trial Court has not committed any illegality in dismissing the complaint which warrants interference by this Court. Accordingly, the instant acquittal appeal deserves to be dismissed and accordingly it is dismissed. Sd/- (Narendra Kumar Vyas) Judge Bhumika