1 2025:CGHC:330 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 3173 of 2024 • Mahendra Goenka S/o Sushil Goenka Aged About 46 Years R/o Farishta Complex, G.E. Road, Raipur, P.S. Moudhapara, Tahsil And District Raipur, Chhattisgarh. (Complainant) ... Petitioner(s) versus • Shyamsundar Agrawal S/o Mahaveer Prasad Agrawal, R/o In Front Of Rajendra Anaj Bhandar, Ramsagarpara, Raipur, District Raipur, Chhattisgarh. (Accused/ Non-Applicant). ---- Respondent ----------------------------------------------------------------------------------------------- For Petitioner : Mr. Trivikram Nayak, Advocate For Respondent : Mr. T. R. Patel, Advocate. ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 03.01.2025 1. Heard on application for grant of leave to appeal under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023. 2. With the consent of the parties, matter is heard finally. 3. Petitioner/complainant has preferred this petition seeking permission to file acquittal appeal against the judgment dated 15.07.2024 passed in Criminal Complaint Case No.4829/2017 by which learned Judicial Magistrate First Class, Raipur, (CG) acquitted the respondent/accused 2 from the charge punishable under Section 138 of the Negotiable Instrument Act, 1881. 4. Brief facts for disposal of this case is that on the basis of acquaintance and personal request of respondent/accused, complainant given him sum of Rs.56,55,000/- for his personal work for which a written undertaking was given by accused for return of said amount. Thereafter, accused given a cheque bearing (Cheque No.944033 dated 23/08/2016 of Oriental Bank of Commerce) for a sum of Rs.56,55,000/-, however, cheque in question has been returned back by the Bank vide Memo dated 08/11/2016 with a reason ‘Insufficient Funds’. Subsequently, accused did not pay any heed to pay the borrowed amount, therefore, complainant send legal notice dated 25/11/2016 to him for return of the amount in question. Despite receipt of the legal notice, amount in question did not pay by the accused. Hence, as per the provisions of Section 138 N.I. Act, complainant has filed the complaint case on 03/01/2017 with requisite documents and affidavits before trial Court, which was registered as Criminal Complaint Case bearing Case No.4829/2017. Examination-in-chief of complainant was conducted on 28/12/2023 before the trial Court and relevant documents has been exhibited i.e. written undertaking, impugned cheque, legal notice, receipt, acknowledgment slip, etc. Hence, all the necessary ingredients of Section 138 of NI Act is present in this case. However, trial Court dismissed the complaint case and acquitted the accused on the ground that complainant’s evidence is closed on account of his non- appearance. Hence, this case. 3 5. Learned counsel for the petitioner/complainant submits that it is reflecting from the records that the complainant was present before the trial Court on 28/12/2023, his examination-in-chief was recorded and exhibits were marked on the basis of his examination-in-chief, however, accused/respondent had sought time to cross- examine the complainant on some other date which was allowed and case was fixed on 20/06/2024 for cross-examination. Complainant alongwith his Counsel was available before the trial Court on 20.06.2024, however, the accused again sought adjournment and case was fixed on 11/07/2024. Moreover, accused had not even bothered to move an application u/s 145(2) of the NI Act seeking permission to cross- examine the complainant. On 11/07/2024, due to bonafide reasons and personal exigency, the complainant could not appeared before the trial Court, though his Counsel was duly present there and also informed about non-availability of complainant due to personal exigency, still the trial Court erroneously proceeded to 'close the opportunity of complainant to lead evidence’ and wrongly held that no case is made out against the accused and passed the impugned order dated 15/07/2024 and thereby acquitted the accused/respondent from the charge punishable under Section 138 of the NIA Act, 1881, however, trial Court ought to have provided at least one more opportunity to the complainant to lead the evidence. Learned Counsel further submits that impugned order was passed despite the fact that in the matter at hand as Section 145(2) of Negotiable Instrument Act, 1881 casts duty and obligation on the accused/respondent to file an application to seek cross- examination of the complainant/present appellant, which in the 4 instant case was never complied with by the accused. Hence, impugned order to the effect that it closes the opportunity of leading the evidence of complainant is concerned, is wrong, per see and contrary to law and is liable to be set aside. Hence, it is contended that the dismissal being too strict, the same may be set-aside and the complaint may be directed to be restored and may be decided on merits. It is further prayed the acquittal of the respondent may be set-aside accordingly. In support of his contention, learned Counsel places reliance upon the judgment of Hon’ble Supreme Court in case of Indian Bank Association & Or versus Union of India & Ors report in (2014) 5 SCC 590. 6. Per contra, learned counsel appearing on behalf of the respondent vehemently opposes the same. 7. I have heard the learned counsel for the respective parties and perused the order sheet. 8. Perusal of the order sheet would show that on 03/01/2017, complaint was filed by the petitioner U/s. 138 of Negotiable Instrument Act. Subsequently, the matter came up for hearing before the trial Court, where after perusal of the affidavit and relevant documents prima-facie found that the case is made out U/s. 138 of Negotiable Instrument Act and issued notice to the respondent/accused. Subsequently, the case was fixed for recording of evidence and on 28/12/2023, examination-in- chief of complainant was recorded, however, on the request of accused/respondent case was fixed on 20/06/2024 for cross- examination of complainant and, thereafter, again on his request, case 5 was fixed on 11/07/2024. On 11/07/2024, when the complainant could not appeared before the trial Court, trial Court close the opportunity of complainant to lead evidence and passed the impugned order dated 15/07/2024 and acquitted the accused/respondent from the charge punishable under Section 138 of the NIA Act, 1881. 9. Relevant portion of Indian Bank Association (supra) reads as under: “16. We have indicated that under Section 145 of the Act, the complainant can give his evidence by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the Court, which makes it clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. Affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post summoning stage. In other words, there is no necessity to recall and re- examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act suo moto by the Court. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under Section 263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence. We make it clear that if the proviso (a), (b) & (c) to Section 138 of the Act are shown to have 6 been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences. xxxxxx 23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re- calling a witness for cross-examination.” 10. Considering facts of the case, submissions of learned counsel for the parties, decision of Hon’ble Supreme Court in case of Indian Bank Association (supra), impugned dismissal order dated 15.07.2024 passed in Criminal Complaint Case No.4829/2017 is hereby set-aside. The case is remanded back to the trial Court concerned to adjudicate a fresh from the stage of its dismissal. 11. It is directed that petitioner/complainant shall remain present before the trial Court concerned on 27.01.2025 and in-turn trial Court shall proceed further to record his evidence. CC as per rules. Sd/- (Arvind Kumar Verma) Judge J/-