1 2025:CGHC:17716 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 578 of 2024 Saurabh Agrawal S/o G.K. Agrawal, Aged About 40 Years Caste Agrawal, R/o Plot No. 167, T.P. Nagar Korba, Tahsil And District Korba (C.G.) ... Appellant(s) versus Lakhan Kapur S/o Shri Gajanand Kapur, Aged About 35 Years R/o Qu. No. 89/4, Gajraside, Bankimongra, Thana Bankimongra, Tahsil Katghora, District Korba (C.G.) ... Respondent(s) For Appellant : Mr. T. R. Patel, Adv on behalf of Mr. V. K. Pandey, Adv. For Respondent : Mr. Anchal Kumar Matre, Adv. SB : Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 17.04.2025 1. The instant appeal has been filed against judgment dated 23.11.2021 passed by the Judicial Magistrate First Class, Korba in Criminal Case No.736/2017, whereby, the respondent (accused therein) was acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short "NI Act"). 2. As per complaint of the appellant, the appellant and respondent were familiar to each other. The appellant is Director/Proprietor of Tirupat Enterprises and he is manufacturer and seller of tractor-trolley. The accused has purchased the tractor-trolley from the appellant and for Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.04.21 10:40:26 +0530 2 payment he given cheque of Rs.1,25,000/- to the complainant on 16.01.2017. However, when the complainant deposited the said cheque for encashment, the same returned dishonoured due to insufficient funds. Even after receipt of legal notice, the accused did not pay the cheque amount. Hence, the complainant has filed complaint under Section 138 of the NI Act. 3. The complainant denied the allegation levelled against him and claimed to be tried. After evaluating the evidence on record, the trial Court acquitted the accused of the charge mentioned above holding that the complainant failed to establish his case and also failed to prove that he has sent legal notice to the accused within stipulated time. Being aggrieved by the judgment of acquittal, present appeal has been filed. 4. Learned counsel for the appellant submits that the trial Court has committed grave error in acquitting the respondent/accused as there is a legal presumption under Section 139 of the NI Act that valid consideration has been passed which has not been rebutted by the respondent/accused. He also submits that even the attorney holder can initiate the proceeding under Section 138 of the NI Act. Hence, the judgment of acquittal deserves to be set-aside. 5. Per contra, learned counsel for the respondent would submit that the trial Court has not committed any error while acquitting the accused from the aforesaid charge as the appellant failed to establish any nexus with the firm namely Tirupat Enterprises and also failed to prove that he is proprietor or director of the said firm. He submits that the trial Court has also taken the similar view while relying on the judgment of Milind 3 Shripad Chandurkar Vs Kalim M. Khan & Anr [2011 (4) SCC 275]. He further submits that even legal notice alleged to have sent by the complainant has not been proved. Therefore, this appeal deserves to be dismissed. 6. Heard learned counsel for the parties and perused the record. 7. In the matter of Milind Shripad Chandurkar Vs Kalim M. Khan & Anr [2011 (4) SCC 275], it has been observed if the complainant has no documentary evidence to prove nexus or connection between the appellant and firm, he has no locus standi to file the complaint under the NI Act. 8. In the case in hand, the complainant has not produced any material evidence to prove that he is proprietor of Tirupati Enterprises and mere statement in the affidavit in this regard is not sufficient to meet the requirement of law. Further, the legal notice which is required to sent to the accused within stipulated time has also not been proved by the complainant. 9. In view of the aforesaid discussion, this Court is of the considered opinion that the complainant failed to make out a case for interference in the judgment of acquittal which has been passed by the trial Court after proper appreciation of evidence on record. Hence, findings arrived at by the trial Court is just and proper and same does not call for any interference by this Court. 10.Appeal fails and stands dismissed accordingly. Sd/- (Deepak Kumar Tiwari) Judge Ajay