1 2025:CGHC:969 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 79 of 2015 Pankaj Jain S/o Amritlal Jain Aged About 27 Years Proprietor Prabha Auto Finance, R/o - 403 Nandi Parisar, Padmanabhpur, Durg, Tahsil and District Durg C.G. , ... Petitioner versus Vijitabh Shrivastava S/o B.L. Shrivastava Aged About 30 Years R/o Begam Bai Gali, Kelabadi, Durg, Tahsil and District Durg C.G. , ... Respondent For Petitioner : Mr. Navin Shukla, Advocate holding the brief of Mr. Shamsuddin Mirza, Advocate. For respondent : None. Hon'ble Shri Ramesh Sinha, Chief Justice Order on Board 07.01.2025 1. The petitioner/complainant has sought the present CRMP for grant of leave to appeal against the impugned judgment of acquittal dated 31.07.2014 passed in Complaint Case No. 702/11 by the learned Judicial Magistrate First Class, District – Durg (C.G.) whereby the learned trial Court has acquitted the respondent/accused from offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in shot, NI Act), by giving benefit of doubt holding that the prosecution has failed to PREETI KUMARI Digitally signed by PREETI KUMARI Date: 2025.01.09 17:18:51 +0530 2 prove the charges beyond reasonable doubt. 2. Case of the prosecution, in brief, is that as per complaint lodged by petitioner/complainant Pankaj Jain is that he is the proprietor of Prabha Auto Finance and is engaged in the work of financing the vehicles. The respondent/accused got his vehicle Hero Honda (Splendor) financed from the petitioner/complainant but did not repay the installments in time. For the payment of the remaining amount the respondent/accused gave a cheque bearing No.270424 of D.B.I., Priyadarshini Parisar, Branch-Nehru Nagar, on 27.12.2003 worth Rs. 11,630/- to the petitioner. The said cheque was presented by the petitioner for encashment at the drawee bank Durg-Rajnandgaon Gramin Bank, Supela. On 21.6.2004 the petitioner received information from the bank that the said cheque has got dishonoured with the endorsement of insufÏcient fund in the account. An oral information was given the to respondent/accused regarding dishonour of the cheque but the respondent/accused did not pay the demanded sum. Hence, a legal registered notice was sent on 02.07.2004 to the respondent/accused but even after passing of the stipulated time period when the respondent/accused did not return the amount, a complaint was filed by the appellant/complainant before the Court of learned Judicial Magistrate First Class, Durg for the offence punishable under Section 138 of the NI Act against the respondent/accused. The learned Judicial Magistrate First Class, Durg on the basis of documents and the complaint finding establishment of a prima facie case under Section 138 of the N.I. Act issued summons for the presence of the respondent/accused. Accordingly, the respondent/accused presented himself and denied the particulars of the charge framed against him and pleaded trial. The learned trial Court on the basis of documents and evidence of the witnesses found that the respondent/accused was able to 3 rebut the statutory presumption under Section 118 and 139 of N.I. Act and therefore, acquitted him of the said charge. Hence, this petition. 3. Learned counsel appearing for the petitioner submits that in terms of Section 138, there is a presumption that the cheque was received by the petitioner for the discharge of debt or liability incurred by the respondent and the execution of the cheque itself is admitted by the respondent. Further, the respondent has also not place any material so as to rebut the presumption available under Section 138 of the NI Act, hence he is liable to be convicted under Section 138 of the NI Act. The learned trial Court in para-14 of its judgment has made an observation that when Rs. 30,000/- was financed to the respondent for purchase of Hero Honda(Splendor), then as on what basis installment of Rs. 1,630/- each has been fixed which in total comes to Rs. 39,120/-. Learned trial Court ought to have considered that if any loan is repaid in installment, interest amount has also to be calculated along with the principal amount and per month installment is fixed accordingly. Thus, the judgment, findings and order of acquittal passed by the learned trial Court is illegal, improper and incorrect and is liable to be set aside. 4. I have heard learned counsel appearing for the petitioner/complainant and perused the record of the case including the impugned judgment of acquittal. 5. Form the perusal of the impugned order it transpires that according to the statement recording of the prosecution witnesses as well as the defence witnesses before the trial Court, the offence under which the accused is being tried, the prosecution has failed to prove it beyond reasonable doubt, which creates grounds for doubting the prosecution’s case and it is well established principle of law that the suspicion, however strong it 4 may be, cannot take the place of proof, and the accused cannot be convicted on the ground of suspicion, no matter how strong as was held by the Hon’ble Apex Court in the case of Digambar Vaishnav and Another v. State of Chhattisgarh, 2019(4) SCC 522, and thus, giving the benefit of doubt, the learned trial Court has rightly acquitted the accused/respondents. 6. Taking into consideration the findings recorded by the learned trial Court, acquitting the accused/respondent from aforesaid offences, I do not find any reason to allow this application seeking grant of leave to appeal. 7. Recently, applying the law governing the scope of interference in an appeal against acquittal, the Hon'ble Supreme Court in the case of "State of Rajasthan Vs. Kistoora Ram" reported in 2022 SCC OnLine SC 984, has held as follows:- "8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all." 8. Thus, for the foregoing reasons, the Criminal Miscellaneous Petition seeking for leave to appeal being totally devoid of merits the same is rejected. Consequently, the appeal also stands dismissed. Sd/- (Ramesh Sinha) Chief Justice Preeti