1 2025:CGHC:23133 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 1128 of 2024 1 - Amit Kumar Lanjiwar S/o Late Shri Gangaram Lanjiwar Aged About 40 Years R/o Fokat Para, Kasaridih, Durg, Tehsil And District Durg (C.G.),... (Complainant) ... Appellant. versus 1 - Devika Soni W/o Shri Satish Soni Aged About 52 Years R/o Near Sonare Bada Shubhash Nagar Durg, Tehsil And District Durg (C.G.),...(Accused) ... Respondent(s) For Appellant : Shri Amit Nayak, Advocate. For Respondent(s) : Ms. Anuja Sharma, Advocate. Hon'ble Shri Deepak Kumar Tiwari, J Judgment On Board 11/06/2025 1. This Acquittal appeal has been filed against the judgment dated 21.05.2024 passed by Judicial Magistrate First Class, Durg, District Durg, Chhattisgarh in Criminal Complaint Case No.2118/2016 whereby, respondent/accused was acquitted of the charges under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act, 1881”). AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.06.12 14:03:33 +0530 2 2. As per the complaint, respondent/accused and complainant were acquainted with each other, therefore, complainant on 05.06.2015 advanced cash loan amounting to Rs.90,000/- to respondent/accused for her domestic need. Respondent/accused promised to return the loan amount in the first week of November, 2015. Thereafter, respondent/accused gave a cheque (Ex.P/1) dated 16.11.2015 amounting to Rs.90,000/-. However, when the same was presented for encashment, it got dishonoured on account of insufficiency of funds, which was informed by the Bank vide Ex.P/2. Legal notice was sent vide Ex.P/3 to respondent/accused, however, despite receiving the said notice, when the payment was not made, complaint was filed which ended with acquittal. Hence this appeal. 3. Learned counsel for the appellant would submit that trial Court has not appreciated the evidence in its proper perspective, though there is legal presumption under Section 118 & 139 of the Act, 1881. At last, he prays to allow the appeal. 4. Per contra, learned counsel for the respondent would support the order impugned and would place reliance in the matter of Basalingappa Vs. Mudibasappa {(2019) 5 SCC 418}. 5. In the matter of Basalingappa (supra) principles relating to presumption under Section 118 (a) and 139 of the NI Act were summarized at para-25 which reads as under:- “25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 3 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence.” 6. It is also well settled that in the matter of appeal against acquittal, the High Courts should not ordinarily set aside the judgment of acquittal in cases where two views are possible. The same principle has been reiterated in the matters of Budh Singh vs. State of U.P. [(2006) 9 SCC 731] and V.N. Ratheesh vs. State of Kerala, [(2006) 10 SCC 617]. 7. Reverting to the facts of the present case, complainant in his cross- examination categorically admits that he runs a photocopy shop but has not filed any documents as regards income from the said shop. In the cross- examination, it was challenged that at the relevant time, complainant was not having money to the tune of Rs.90,000/- to advance loan to respondent/accused and complainant has not filed any documents or 4 evidence to the effect that at the relevant time he was possessing such financial capacity. 8. As per the principles laid down in the matter of Basalingappa (supra), respondent/accused from cross-examination of the complainant has successfully raised a probable defense that complainant was not having the financial capacity at the relevant time, therefore, this Court is of the opinion that the view taken by the trial Court is a possible one, which does not call for interference. 9. In the result, this Appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Avinash