1 2025:CGHC:2816 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 9 of 2015 Dushyant Kumar Yadav S/o . Dwarika Prasad Yadav Aged About 32 Years R/o. Shikaripara, Balod, Tah. And Dist. Balod C.G. ... Petitioner(s) versus 1 - State Of Chhattisgarh And Anr. Through The Distt. Magistrate Balod, P.S. Gunderdehi, Distt.Balod C.G. 2 - Shivnath Yadav S/o . Balai Yadav Aged About 45 Years R/o. Railway Colony Wireless, Qtr. No.D.R. II, 15/1, Bilaspur, Distt. Bilaspur C.G. ... Respondent(s) For Petitioner(s) : Mr. S.K. Singh, Advocate. For Respondent No.1 : Mr. Amit Verma, Panel Lawyer. For Respondent No.2 : Ms. Palak Dwivedi holding the brief of Mr. Sourabh Dangi, Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Order on Board 16 .01.2025 1. Heard Mr. S.K. Singh, learned counsel for the petitioner. Also heard Mr. Amit Verma, learned Panel Lawyer, appearing for AKHILESH KUMAR DEWANGAN Digitally signed by AKHILESH KUMAR DEWANGAN 2 respondent No.1/State as well as Ms. Palak Dwivedi, learned counsel holding the brief of Mr. Sourabh Dangi, learned counsel for respondent No.2. 2. The petitioner has sought leave to appeal against the impugned judgment of acquittal dated 06.09.2014 passed by the learned Judicial Magistrate First Class, Balod, District – Balod (C.G.) in Criminal Case No.177/2013, whereby the learned trial Court acquitted the respondent No.2 of the charge punishable under Section 138 of Negotiable Instrument Act. 3. The prosecution story, in brief, is that the respondent No. 2 (accused) had a close relationship with the appellant (complainant) and borrowed Rs.1,70,000/- from him on 21.10.2011. The accused provided a cheque (No. 696421) from Punjab National Bank, Sadar Bazar, Bilaspur, as a guarantee. The appellant deposited the cheque in his State Bank of India account in Balod, but it was dishonored on 01.12.2011, due to insufficient funds. Thereafter, the appellant sent a notice to the accused on 26.12.2011, demanding repayment of the loan amount (Rs. 1,70,000/-) alongwith notice expenses (Rs.300/-). The accused received the notice on 28.12.2011, but failed to respond or repay the amount. 4. Thereafter, the appellant filed a complaint under Section 138 of the Negotiable Instruments Act within the limitation period, seeking punishment and compensation from the accused. The 3 trial Court took cognizance of the complaint and framed charges against the accused. The accused denied the charges and claimed to be innocent, but failed to produce any defense witnesses despite expressing his intention to do so. The appellant filed an affidavit under Section 145 of the Negotiable Instruments Act and was cross-examined by the accused. The applicant has various documents such as copy of the cheque (P/1), Bank memorandum (P/2), Notice to the accused (Ex. P/3), Advocate's notice (P/4), Postal receipt (Ex. P/5), Acknowledgment (P/6) and Accused's statement, thereafter, the learned trial Court has acquitted the respondent No.2 of the charge punishable under Section 138 of Negotiable Instrument Act. 5. Learned counsel for the petitioner submits that the learned trial court erred in not considering the fact that the respondent No. 2 (accused) admitted to signing the cheque in question, as evident from his statement in response to question No. 5. This admission raises a presumption against the accused under Section 139 of the Negotiable Instruments Act, and in the absence of any rebuttal, it cannot be said that there is no legally enforceable debt owed by the accused to the appellant, further the learned trial Court committed a grave error in deciding question No. 12, as no answer was provided in response to this question, which pertains to the legal notice. Consequently, the court's decision on this matter was superficial and lacked a thorough examination of the evidence. He further submits that the learned trial Court should 4 have taken into account the fact that the accused expressed his intention to produce a defense witness, as stated in his statement under Section 319 of the Code of Criminal Procedure. However, the accused failed to produce any defense witness, which rendered him unable to rebut the charges against him, also the learned trial Court ought to have considered the fact that the accused failed to respond to the notice sent by the appellant, and instead, remained silent after receiving the notice. This silence can be inferred as an admission of his liability to pay the legally enforceable debt to the appellant. He also submits that erred in not adequately considering the fact that the accused had admitted to signing the disputed cheque. This admission is a crucial piece of evidence, as it suggests that the accused had indeed received the amount mentioned in the cheque. Consequently, the onus shifted to the accused to provide a plausible explanation for issuing the cheque to the appellant. However, the learned court below failed to properly consider this aspect, thereby rendering the order of acquittal vulnerable to challenge. In light of the above, it is contended that the order of acquittal passed by the learned court below is vitiated by material illegality and irregularity. The accused's admission of signature on the cheque, coupled with his failure to provide a satisfactory explanation for issuing the cheque, raises a strong presumption against him. The learned court below's failure to properly appreciate this evidence and draw the necessary inferences has resulted in a miscarriage of justice, 5 therefore, the impugned judgment and order of acquittal dated 06.09.2014 is bad in law and liable to be set-aside. 6. On the other hand, learned counsel for the respondent No.2 opposes the submissions made by the learned counsel for the petitioner and supports the impugned judgment passed by the trial Court. 7. I have heard learned counsel for the parties, considered their rival submission and gone through the records filed alongwith this petition. 8. Learned trial Court has acquitted the respondent No.2/accused observing the accused had issued a check to the complainant as security, which does not attract Section 138 of the Negotiable Instruments Act since it was not issued for the payment of debt. Furthermore, the accused had issued the check on 21.10.2011, despite not having sufficient funds in their account, to the complainant for the payment of debt, but the dishonoring of the check has not been proven. Based on these findings, the complainant has failed to prove the case against the accused under Section 138 of the Negotiable Instruments Act. Therefore, the accused/respondent No.2 - Shivnath Yadav, is not found guilty and is acquitted of the offense under Section 138 of the Negotiable Instruments Act. 9. Recently, applying the law governing the scope of interference in an appeal against acquittal, the Hon'ble Supreme Court in the 6 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." 10. Taking into consideration the findings recorded by the learned trial Court, acquitting the respondent No.2/accused from aforesaid offence, I am of the view that the trial Court has not committed any illegality or infirmity or jurisdictional error in the impugned order for grant of leave to appeal. 11. Accordingly, the Criminal Miscellaneous Petition being devoid of merit is liable to be and is hereby dismissed. Sd/- (Ramesh Sinha) Chief Justice Akhil