1 2025:CGHC:6662 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 978 of 2024 • Rajendra Kumar Sahu S/o Shri Khirodhar Sahu Aged About 36 Years Caste Teli, R/o Ward No. 12, Basna, Tehsil Basna, Police Station Basna, Mahasamund Chhattisgarh,...(Complainant) ... Appellant. versus • Hemlal Banjara S/o Shri Chedilal Nayak Aged About 40 Years R/o Village Bhalupatera, Post Rasoda, Basna, Tehsil Basna, Police Station Basna, Mahasamund (Chhattisgarh),..(Accused) ... Respondent For appellant. : Mr. Sunil Verma, Advocate. For Respondent(s) : Ms. Vidhi Maltani, Advocate appears on behalf of Mr. Sanjay Agrawal, Advocate. (Hon’ble Mr. Justice Narendra Kumar Vyas) Order on Board 05/02/2025 1. The appellant/complainant has filed this appeal being aggrieved by acquittal of the impugned order dated 2-3-2021 (Annexure P/1) passed by the Additional Sessions Judge, Saraipali, District 2 Mahasamund (CG) in Criminal Appeal No. 20 of 2019 whereby learned Additional Sessions Judge, Saraipali, District Mahasamund has acquitted the respondent/accused from the offence punishable under Section 138 of the Negotiable Instrument Act arising out of the order dated 4-2-2019 passed by the learned Judicial Magistrate First Class, Basna. 2. The brief facts of the case are that on 7-3-2017 appellant/complainant has filed a complaint case before the learned Judicial Magistrate First Class, Basna under Section 138 of the Negotiable Instruments Act alleging that the appellant/complainant has good relationship with accused for long time and due to family requirement the accused borrowed Rs.50,000/- from him, thereafter respondent/accused having bank account No. 31038239637 had issued a cheque bearing No 161285 dated 21-12-2016 of State bank of India in the name of the appellant on 9-1-2017. The appellant presented the said cheque in the State Bank of India Branch Basna for payment and on 16-1- 2017 the said cheque was returned back with an endorsement that the said cheque was dishonoured due to insufÏcient funds in the account of respondent/accused. Thereafter, the appellant sent a registered notice through his counsel on 23-1-20217 which was received by the respondent on 27-1-2017 but the respondent deliberately has not returned the amount, therefore, on 7-3-2017 the appellant filed a complaint case against the respondent under Section 138 of the Negotiable Instruments Act before the learned Judicial Magistrate First and prayed for grant of said amount of cheque and also prayed for imposition of punishment against the respondent. 3 3. Learned trial Court taking cognizance of issue has summoned notice to the respondent/accused. Complainant has examined in examination of chief by way of an afÏdavit as provided under Section 145 of the Negotiable Instruments Act and exhibited the cheque (Ex,.P/1), receipt of deposit of cheque (Ex,.P/2), dishonoured cheque (Ex.P/3), postal receipt of notice ( Ex.P/4), notice to respondent (Ex.P/5) and report of delivery of notice (Ex.P/6). The witness was cross examined wherein it has been specifically stated that he is not aware when the amount of Rs.50,000/- was given to the appellant, has not been mentioned neither in the complaint nor before whom he has given, has not been mentioned. This witness has also admitted that he is doing the business of agriculture and fertilizer and he is income tax paid employee also. He has also admitted that he has not mentioned any documentation with regard to payment made to the complainant. In paragraph 22 he has denied that he is playing money transaction game with 20%. He had also denied that Lalit Soni and other persons are also members of this club. He has denied the factum of playing this money transaction game and the cheque was received in lieu of said amount. He has also admitted that the accused has not given money, therefore, he has not given the cheque. He voluntarily stated that the cheque has not been kept in money transaction. The accused/respondent has not examined any witness before the trial court but he has examined himself by way of an afÏdavit under Section 313 of Cr.P.C wherein he has denied the allegations levelled against him and pleads innocence. 4. Learned trial Court vide judgment dated 4-2-2019 convicted the appellant. Being aggrieved by the order passed by the learned 4 trial Court, the accused had preferred an appeal wherein the learned Appellate Court after appreciating the evidence and material on record, acquitted the accused respondent. Being aggrieved by the order, the complainant/appellant has preferred this Acquittal Appeal . 5. Learned counsel for the appellant submits that the impugned judgment dated 2-3-2021 passed by the learned trial Court is bad- in-law, perverse, illegal, erroneous and contrary to the facts & circumstances of the case, therefore it is liable to be set aside. The respondent has been wrongly acquitted by the Court because he has not taken the defence that he did not deliver the cheque Ex. P/1 to the appellant. In entire cross-examination of PW-01 he has not cross-examined the witness or given any suggestion about the aforementioned cheque. He would further submit that the learned trial Court has not considered that it is required for the complainant to plead and prove that when the money was given to the accused. The appellate court has not considered the relevant aspects of the matter and would pray for setting aside the impugned order. To substantiate his submission he has relied upon the decision of Hon’ble Apex Court in the matter of Rangappa vs. Sri Mohan, reported in (2010) 11 SCC 441, Dattraya vs. Sharanappa, reported in (2024) 8 SCC 573 and Vijay vs. Laxman and another, reported in 2013(4) MPHT 171 (SC). 6. On the other hand, learned counsel for the respondent supporting the impugned judgment submits that the learned appellate Court has minutely appreciated the oral and documentary evidence and rightly acquitted the respondent. She would further submit that 5 the appellate Court has recorded its finding that the complainant has no where pleaded and proved that when money was given to the accused, as such it was required for him to prove that when the money was given to the accused. She would further submit that in para 22 the accused in clear terms has admitted that the cheque was given in terms of playing BC with 20% in money transaction. As such, this judgment is well merited and this appeal being devoid of any merit is liable to be dismissed 7. I have heard both the counsel for the parties and perused the material available on record. 8. Now the point emerged for determination of this court is whether the appellate Court has recorded its perverse finding contrary to the evidence on record. To appreciate this fact, this Court has gone through the evidence and material on record, particularly coss examination of the complainant who neither in the complaint nor in the evidence has stated that when the accused has taken money and when the cheque was given to him for his liability and at least he should have pleaded towards his liability that the accused has given the cheque and on the contrary he has made a bald statement that due to some personal work and clarificatory statement was made by him for which liability the cheque was given to him. On the contrary, in the evidence he has admitted that he has kept the cheque and returned the money and once he has submitted the cheque before the bank and it has been dishonoured then the statement creates doubt over the stand of the complainant that the cheque was not given towards any liability. This witness in para 22 has categorically tried to clarify 6 that the cheque was not given for any money transaction game but he was unable to plead that towards which liability the cheque was given. The accused from the very first day is taking his stand that the money was paid by the complainant for which cheque was given to him. 9. Considering all the facts, evidence and material, this Court is of the opinion that the learned appellate Court after appreciation of oral and documentary evidence acquitted the accused/respondent of the charges leveled against him in which this Court does not find any perversity or illegality warranting interference and the appellate Court has not committed any illegality in allowing the appeal. So far as judgment is concerned, legal position is not in dispute and in fact the judgments cited by learned counsel for the appellant fortify the finding of the Court that unless and until the liability is proved, offence under Section 138 of the Negotiable Instruments Act cannot be attracted, therefore, I am of the view that the acquittal appeal deserves to be dismissed. 10. Accordingly, this acquittal appeal being devoid of merit is liable to be and is hereby dismissed. Sd/- (Narendra Kumar Vyas) JUDGE Raju RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.03.26 14:26:55 +0530