1 2025:CGHC:12530 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 572 of 2019 1 - Narendra Sharma S/o Shri Bhawan Sharma Aged About 59 Years R/o Kailash Nagar, Tehsil And District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh ... Petitioner versus 1 - Ajay Kotariya S/o Phukhraj Kotariya Aged About 45 Years R/o Apna Ghar, Nandai Chowk, Tehsil And District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh ... Respondent For Petitioner : Mr. Ashish Surana, Advocate appeared through VC For Respondent : Mr. Anand Dadariya, Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order On Board 17.03.2025 1. The complainant has filed this acquittal appeal assailing the order dated 22.05.2019 passed by the learned Judicial Magistrate First Class, Rajnandgaon (C.G.) in Complaint Case No. 171/2014 by which the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 has been dismissed and accused has been acquitted for commission of offfence under Section 138 of the Negotiable Instruments Act, 1881 (for short, the N. I. Act). BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2025.04.15 14:26:24 +0530 2 2. The brief facts as reflected from the record are that the complainant filed a complaint under Section 138 of the N. I. Act alleging that complainant and accused are known to each other since 25 years, due to cordial relationship between the complainant and accused, the accused demanded Rs. 21,00,000/- towards loan from the complainant and accordingly he has given loan in cash. The accused gave a cheque bearing No. 101820 dated 23.03.2013 to the complainant which was submitted by the complainant in the account maintained by him at State Bank of Maharashtra, Branch-Rajnandgaon which has been dishonored and returned to the complainant on 28.03.2013 with an endorsement “account is closed”. Thereafter, the complainant sent a legal notice to the accused which was replied by the accused but cheque amount was not paid to the complainant which has necessitated the complainant to file a complaint under Section 138 of the N. I. Act. 3. During trial the complainant examined himself as PW-01 as provided under Section 145 of N.I. Act wherein he has reiterated the stand taken by him in the complaint and exhibited documents namely dishonored cheque (Ex. P/1), cheque return memo (Ex. P/2), Legal Notice (Ex. P/3), postal receipt (Ex. P/4), acknowledgment dated 12.04.2013 (Ex. P/5), reply of the accused (Ex. P/6), bills related to goods which the complainant has purchased from accused (Ex. P/7 to Ex. P/14), vehicle challan related to sending of goods by the accused to the complainant (Ex. P/15 to Ex. P/24) passbook (Ex. P/25), copy of complaint of case No. 1160/13 (Ex. P/26), cheque (Ex. P/27), return memo (Ex. P/28), compromise between the complainant and accused (Ex. P/29) and application under Section 142B of N.I. Act, 1881 by the accused for 3 dismissal of the another complaint between accused and Smt. V.V. Rangnayaki Vasudevan (Ex. P/30), affidavit (Ex. P/31) and order sheet of Complaint Case No. 1160/2013 (Ex. P/32). 4. The witness was extensively cross-examined by the accused wherein he has admitted that he has not mentioned the date when Rs. 21,00,000/- was given to the accused and he has also received the reply of the notice. He also admitted that he has not given any notice to Abhay Mineral towards dishonor of the cheque and also mentioned that he has neither stated anything in the complaint regarding the fact that the accused is proprietor of Abhay Mineral nor he has placed any documents to show that Ajay Kotariya is proprietor of Abhay Mineral. He has also stated that he has not given Rs. 21,00,000/- in cash at once to Abhay Mineral and he also admitted that he used to do business with Abhay Mineral and has paid advance on various occasions from 2010. He also stated that in lieu of advance payment he has been provided white clay and also admitted that he has not mentioned any date in the complaint with regard to advance payment. He also stated that he used to take goods in cash and not in advance payment. He also admitted that he has neither mentioned in the complaint that he has given advance to Abhay Mineral nor any document to this effect has been placed on record. He has also admitted that in sale consideration of Rs. 97,00,000/- half percent was fixed as commission and also admitted that he has not given any money to Ajay Kotariya in lieu of that commission. He also admitted that he has taken a shop on rent in the name of his wife and Sandeep Shrivastava is a working partner and they are doing business jointly and Sandeep Shrivastava used to give Rs. 15,000/- per month with 4 regard to business. He has denied that he has taken blank cheque of Abhay Minerals from Sandeep Shrivastava’s shop. 5. Sandeep Shrivastava also examined himself as DW-01 and stated that he used to take raw material from Abhay Mineral and after manufacturing of product he used to give him back. He has admitted that during that time he had to take more money from Abhay Mineral, so he asked Abhay Mineral to give him a cheque and promissory note as security and it was also agreed between them that in the end when the accounts will be settled, if no amount is outstanding then the cheque and promissory note will be returned to him. He also admitted that blank cheque and promissory note were given by Abhay Mineral and transaction continued between them for two years and in the year 2010 account was closed. At that time promissory note and black cheque were demanded by Abhay Mineral but he has not given and he has assured Abhay Mineral that whenever the cheque will be found by him he will return which was not traceable despite search made by him. He also admitted that he has kept cheque and promissory note in the file of his table at shop. He also stated that State Bank of Indore Branch Rajnandgaon was closed in the year 2010. He also admitted in the cross-examination that he is known to Narendra Sharma since 2000 and since then he has taken his shop on rent from Narendra Sharma. He denied the fact that he used to pay Rs. 15,000/- per month by way of installment. He stated that earlier he used to give rent by cash but for the last 4 to 5 years he is giving rent by cheque. He also admitted that due to money there was some dispute between the complainant and him and the complainant closed shutter and put lock in the shop and thereafter they have lodged the report. He has 5 admitted the fact that no summon was issued to him but Ajay Kotariya has informed him regarding evidence to be examined before learned trial Court. 6. Learned trial Court on the basis of evidence and material on record has dismissed the complaint and acquitted the accused. The finding given by learned trial Court in paragraph 15 according to which as per Section 269 of Income Tax Act any person cannot be given loan for more than Rs. 20,000/- in cash, therefore, for enforcing the debt liability Section 138 of N.I. Act it should be legally debt, accordingly, it has acquitted the accused. Being aggrieved with this order, present acquittal appeal has been filed by the complainant. 7. Learned counsel for the appellant would submit that the reason assigned by learned trial Court is not sustainable in view of the judgment passed by the Coordinate Bench of this Court in case of Harjit Singh Vs. Smt. Shobha Mishra in ACQA No. 409 of 2018 dated 26.04.2019 wherein the Coordinate Bench in paragraph 10 & 11 has held as under: “10. The trial court recorded finding that the amount was not issued in form of cheque or bank draft. As per Section 269 of the Income Tax Act, 1961, there is no other document of borrowing the money, therefore, liability of debt is not established. 11. In view of this Court, if the transaction in question was not reflected in the accounts and income-tax returns, that would at best hold the assesse or lender liable for action under the income-tax laws but, if the complainant succeeds in showing the lending of amount, the existence of legally enforceable debt cannot be denied. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 & 139 of the Act, 1881. Needless to reiterate that the result of such presumption is that 6 existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration, therefore, the finding arrived at by the trial court is not sustainable. The amount was taken five years back.” He would submit that alleged violation of the Income Tax Act does not escape the accused from discharging his liability to pay amount of the cheque. He would further submit that until and unless the presumption which is drawn in favour of the complainant in view of Section 139 of N.I. Act is rebutted by the accused the dismissal of complaint is not legally sustainable and would pray for allowing the acquittal appeal. 8. On the other hand learned counsel for the accused would submit that the finding recorded by the trial Court is legal and justified which does not warrant interference by this Court. He would further submit that the complainant has not discharged his burden of proving the debt or liability which is essential condition for invoking the penal provisions, thus, he would pray for dismissal of the appeal. 9. I have heard learned counsel for the parties and perused the record. 10. From the record, it is quite vivid that the complainant has taken different stand in the complaint at various stages. Initially he has taken stand that the amount was given by him towards advance to run the business, but during trial he has taken the stand that the accused used to supply him white clay and bills regarding the same were also produced, thus, different stand has been taken by him, as such, there is no consistency in the stand taken by the complainant which itself creates doubt. Similarly, the dishonor of the cheque was not on 7 account of insufficient fund, but on account of “closure of bank” as the State Bank of Indore has already been merged with State Bank of India in the year 2010 and thereafter, cheque was dishonored on 23.03.2013 I.,e, after lapse of 3 years of closure of bank, as such, it is incumbent upon the complainant to satisfy the Court why the accused has given the cheque after closure of the Bank, but no material or explanation to explain the intervening period of between closure o the bank in the year 2010 and issuance of cheque on 03.03.2013 creates doubt over the facts projected by the complainant. Therefore, the finding recorded by learned trial Court in paragraph 16 of the order that cheque was not given towards any debt or liability does not suffers from perversity, irregularity and illegality which warrants interference by this Court. 11. It is pertinent to mention here that the accused has taken specific defense before the trial Court that there was no business transaction with the complainant and the accused but there was transaction between Sandeep Shrivastava and the accused from where cheque has been misused by the complainant and this evidence remains unshaken in the cross-examination as nothing has been brought on record or no question was put to impeach the integrity of the witness also or to dilute the stand taken by the witness in his evidence thus there was sufficient evidence to rebut the presumption in favour of the accused because of examination of defense witness Sandeep Shrivastava who has clarified the position as detailed above. Thus, I am of the view that the finding recorded in paragraph 16 cannot be said to suffer from perversity or illegality which warrants interference of this Court. 8 12. Even learned trial Court in paragraph 17 has taken note of the fact that the cheque has been written from different inks which also create doubt over the genuineness of the cheque. Therefore, I am of the view that the complainant is unable to prove that the cheque was given towards debt or liability as the accused has rebutted the presumption by examining the evidence, therefore, finding recorded by the learned trial Court does not suffer from perversity or illegality which warrants interference of this Court. Consequentially, dismissal of the complaint by the learned trial Court and acquittal of the accused does not warrant interference by this Court. Even otherwise, it is well settled position of law that in the case of acquittal, interference of the Appellate Court should be extremely limited unless and until cogent material is placed on record or the trial Court has ignored the vital evidence already on record. Considering the entire facts and circumstances of the case, I am of the view that the instant acquittal appeal deserves to be dismissed and accordingly it is dismissed. Sd/- (Narendra Kumar Vyas) Judge Bhumika