1 2025:CGHC:8051 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 341 of 2018 Judgment Reserved On: 03.01.2025 Judgment Delivered On: 14 .02.2025 Kapoorchand Sahu S/o Late Shri Maharathi Sahu, Aged About 36 Years R/o Kera Road, Bhatapara, Janjgir, Police Station And Tahsil- Janjgir Civil And Revenue District Janjgir Champa, Chhattisgarh --- Appellant versus Aanchal Sharma W/o Shri Vikas Sharma, R/o In Front Of Singhaniya Lakdi Tall, Netaji Chowk, Janjgir, Police Station And Tahsil- Janjgir, Civil & Revenue District- Janjgir- Champa, Chhattisgarh, At Present R/o Kera Road, Bhatapara, Janjgir, Police Station And Tahsil- Janjgir Civil And Revenue District- Janjgir- Champa Chhattisgarh --- Respondent/Accused For Appellant : Mr. Paras Mani Shriwas, Advocate. For Respondent/Accused : None present. H on'ble Smt. Justice Rajani Dubey C A V Judgment 1. This present acquittal appeal is preferred under Section 378 (4) of the Code of Criminal Procedure, against the judgment dated 13.07.2018 passed by learned Judicial Magistrate First Class, Janjgir, District- Janjgir-Champa (C.G.) in Complaint Case No. 47/2016, whereby the respondent /accused was acquitted of the charge under Section 138 of Negotiable Instruments Act, 1881. Digitally signed by AMIT PATEL Date: 2025.02.14 16:08:14 +0530 2 2. The averments made in the complaint, in brief, are that the appellant/ complainant and the respondent/accused have cordial relationship and therefore, the appellant/complainant gave him Rs. 1,00,000/- (Rupees One Lakh only) through cash to the respondent/accused as a debt, which was demanded by her for purchasing the land on 15.09.2014 and in discharging of the said liability, the respondent/accused gave cheque to the appellant i.e. Cheque Bearing No. 686947 dated 20.09.2014 of Punjab National Bank, Branch- Vyapar Vihar, Bilaspur. However, the said cheque being presented by the appellant before his Bank i.e., SBI Bank, Branch- Station Road, Janjgir for encashment, on 29.09.2014, the same stood dishonoured due to insufficient funds in the account of the respondent/accused. Thereafter, the appellant/ complainant sent the legal notice on 30.09.2014 (Ex. P/4) through his advocate to the accused/ respondent and demanded the cheque amount within 15 days and the same was received by the respondent/accused. The acknowledgment receipt of sending the notice is (Ex.P/6). Despite receiving the notice, the respondent/accused did not pay the cheque amount within the stipulated time period. Therefore, the appellant filed a complaint case under Section 138 of Negotiable Instruments Act (in Short “NI Act”) against the respondent/accused. 3. Learned trial Court after appreciating the oral and documentary evidence by judgment dated 13.07.2018, acquitted the respondent/ accused of the offence under Section 138 of the Negotiable Instruments Act, 1881. Hence, this acquittal filed by the appellant/ complainant. 3 4. Learned counsel for the appellant/complainant submits that the impugned judgment passed by learned trial Court is illegal, bad-in-law and not sustainable in the eyes of law and liable to be set aside. The findings recorded by learned trial Court are perverse and not according to the facts and circumstances of the case as well as provisions of N.I. Act, learned trial Court did not appreciate this fact that appellant/ complainant proved his case by oral and documentary evidence and clearly proved the guilt of the respondent/accused, but the learned trial Court did not appreciate all the documents properly and wrongly acquitted the respondent/accused of the said charge. For all these reasons, the impugned judgment of acquittal is liable to be set aside and the respondent/accused is liable to be held guilty under Section 138 of N.I. Act and punished accordingly. 5. No one appeared on behalf of the respondent/accused, despite service of notice. 6. I have heard learned counsel for the appellant and perused the material available on record. 7. It is clear from record of learned Trial Court that appellant/complainant filed a complaint case under Section 138 of N.I. Act, against the respondent/accused before the Judicial Magistrate First Class, Janjgir for dishonouring of Cheque Bearing No. 686947 amounting to Rs. 1,00,000/- (Rupees One Lakh only) dated 20.09.2014 of Punjab National Bank, Branch- Vyapar Vihar, Bilaspur., and to prove his case, the complainant examined himself in support of his complaint before learned trial Court. The appellant/complainant has filed 09 documents i.e., dishonoured cheque vide Ex.P/1, Bank Slip vide Ex. P/2, Return Memo of Bank Ex. P/3, Legal Notice vide Ex. P/4, Postal Receipt vide 4 Ex. P/5, acknowledgment of respondent/accused vide Ex. P/6, statement of account vide Ex. P/7, certificate vide Ex. P/8 and registration certificate vide Ex. P/9. In cross-examination of the appellant/complainant, it was suggested that he did not file any income tax return and this fact also found by the learned trial Court that the appellant/complainant did not file any income tax return and also found that whole money transactions is suspicious and thereby acquitted the respondent/accused of the said charge, but it is clear from record of learned trial Court that she (respondent) denied all allegations against her, but she did not appear before learned trial Court for cross- examination. It was suggested by defence to complainant/appellant that the said cheque was given as a security/guarantee, however, the appellant denied the suggestion in paras 21 & 22 of his cross- examination, which are reproduced herein for ready reference as under:- “ 20-यह कहना गलत है किक मैंने अभियु्ሹ का चेक गारंटी के तौर पर रखा था। 21-यह कहना गलत है किक आरोपी के पतित के साथ लेन देन होने के कारण आरोपी के पतित ने आरोपी के नाम का चेक अपने ्ቛारा ली गयी रकम की गारंटी के लिलए किदया था। " Thus, it is clear that the respondent/accused has suggested that the said cheque was given by her as a security/guarantee purpose. 8. The Hon’ble Apex Court observed in the case of Rajesh Jain Vs. Ajay Singh, reported in AIR 2023 SC 5018, in paras 53 & 54, which reads as under:- “ 53. In his 313 statements, he admits of having taken a loan of Rs 20 lakh and having repaid some interest but in the cross examination of the complainant, a suggestion is made that the accused had no financial dealings with the complainant. Whereas in his 313 statement, the accused states that his cheque book and 5 passbook is kept in his sister in law's house, yet, in the cross examination of Gita Sunar, the accused's sister-in-law, no suggestion is made to that effect. In fact, she has plainly denied that any blank cheque was given to her by her brother-in- law. We find it highly unnatural to presume that the accused would leave his signed cheque leaves and passbook in his sister-in law's house. Even if he did, there is no reason(s) or motive attributed on part of his sister-in-law, for her to collude along with the complainant. The accused has also not explained as to why he has not set up his defense at the earliest point, that is, at the stage of receiving the demand notice, even though he admits having received the demand notice in his 313 statement, yet he makes a suggestion to the complainant in his cross examination that no legal notice had been issued. The theory of 'blank cheque' being misused has been suggested, only to be denied by both, the complainant and Gita Sunar-CW-3. No action has been taken by way of registering a police complaint in order to prosecute the alleged illegal conduct of his blank cheque having been misused by CW-3.” 54. Nothing significant has been elicited in the cross-examination of complainant to raise any suspicion in the case set up by the complainant. Other than some minor inconsistencies, the case of the complainant has been consistent throughout as can be noticed from a perusal of the complainant, demand notice and affidavit evidence. In fact, the signature on the cheque having not been disputed, and the presumption under Section 118 and 139 having taken effect, the complainant's case stood satisfied every ingredient necessary for sustaining a conviction under Section 138. The case of the defense was limited only to the issue as to whether the cheque had been issued in discharge of a debt/liability. The accused having miserably failed to discharge his evidential burden, that fact will have to be taken to be proved by force of the 6 presumption, without requiring anything more from the complainant.” 9. In the light of above judgment of the Hon’ble Apex Court, it is clear that in the present case, in cross-examination of the appellant/complainant, it was suggested by the respondent/accused, that the said cheque given by her husband as a security/guarantee purpose and he misused the said cheque, the accused/respondent neither appeared before the learned trial Court for cross-examination nor did she file any oral and documentary evidence to support her case, but the learned trial Court did not appreciate presumption of Sections 118 & 139 of N.I. Act and found that whole money transactions are suspicious. Thus, findings recorded by the learned trial Court are not according to the provisions of Negotiable Instruments Act, 1881. As such, the impugned judgment being not sustainable in law is liable to be set aside. 10. Ex consequenti, the appeal is allowed. The impugned Judgment of acquittal dated 13.07.2018 passed by learned trial Court is hereby set aside. The accused/respondent is held guilty under Section 138 of the Negotiable Instruments Act, 1881 and she is sentenced to pay fine of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) as compensation under Section 357(3) of Cr.P.C. to the appellant/complainant within a period of three months from the date of receipt of copy of this judgment. In case of default in payment of fine, she shall undergo simple imprisonment for 01 year. Sd/- (Rajani Dubey) JUDGE AMIT PATEL