1 2025:CGHC:16066 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 976 of 2024 1 - Animesh Verma S/o Late M.S. Verma Aged About 39 Years R/o Kanchanganga Phase 2, Daganiya, P.S. D.D.Nagar, District Raipur Chhattisgarh. ...Appellant/complainant. versus 1 - Dr. Benet Frenklin S/o Late Bensan Frenklin Aged About 44 Years R/o Civil Line, Kelabadi, Near Old Post OfÏce, District Durg Chhattisgarh At Present Resident Of Near Saibaba Mandir, House No. 01, Infront Of Gayatri Mandir, Kasaridih, Durg Chhattisgarh ... Respondent(s)/accused. For Appellant : Shri Pushpendra Kumar Patel, Advocate. For Respondent : Shri Hemant Kumar Sahu, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 04/04/2025 1. This Acquittal Appeal has been preferred against the judgment dated 31.07.2023 passed by 9th Additional Sessions Judge, Raipur (Chhattisgarh) in Criminal Appeal No.250/2022 which in turn arose out of the judgment AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.04.07 10:21:40 +0530 2 dated 18.10.2022 passed in Criminal Complainant case No.3495/2018 by Judicial Magistrate First Class, Raipur. 2. By the impugned judgment, appeal of the respondent/accused was allowed and he was acquitted of the charges under Section 138 of the Negotiable Instruments Act, 1881 (henceforth “the Act, 1881”). 3. Brief facts of the case are that complainant/appellant and respondent/accused were known to each other and on such relationship respondent/accused took loan to the tune of Rs.15,00,000/- from the appellant and for the purpose of returning the said loan issued a cheque (Ex.P/1) dated 23.01.2018 bearing No.007312 which was returned by the Bank vide Ex.P/2 with an endorsement ‘present with document’. Thereafter, a legal notice (Ex.P/3) was sent to the respondent/accused by the appellant and upon receipt of same, respondent/accused failed to pay the amount of the cheque. Hence a complaint case was filed. 4. Learned Judicial Magistrate First Class after evaluating the evidence of the complainant convicted the respondent/accused, against which, he preferred appeal which was allowed. Hence this acquittal appeal has been preferred by the complainant. 5. Learned counsel for the appellant would submit that learned appellate Court has wrongly acquitted the respondent/accused of charges though the learned Magistrate has appreciated the evidence in his proper perspective. Considering the backdrop, this appeal may be allowed. 6. Per contra, learned counsel for the respondent/accused would support the impugned judgment and would submit that complainant fails to brought on record necessary ingredients to establish that cheque was dishonoured due to insufÏciency of funds in the account of respondent/accused. He further 3 submits that in the return memo of the Bank only an endorsement ‘present with document’ has been mentioned. Hence, learned appellate Court has rightly analyzed the evidence and acquitted the accused. 7. I have heard learned counsel for the parties and perused the record with utmost circumspection. 8. To attract offence under Section 138 of the Act, 1881, a cause of action arises when information is received by the complainant from the Bank regarding the return of cheque due to insufÏciency of funds in the account of the drawer/accused, however, in the instant case by way of return memo issued by Bank (Ex.P/2), cheque was returned not for the reason of insufÏciency of funds in the account but for the reason ‘present with document’. Further, learned counsel for the appellant fairly admits that there is no such document or endorsement by the Bank as regards insufÏciency of funds in the account of the respondent/accused, therefore, the same could not be proved and only a document/information Ex.P/2 was proved during the trial. 9. For the foregoing, this Court is of the view that there is no infirmity or illegality in the judgment passed by the learned appellate Court acquitting the respondent/accused as the complainant failed to fulfill the necessary ingredients to attract the said offence. 10.Resultantly, this appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Avinash