1 2025:CGHC:14220 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 31 of 2019 Smt. Nilima Gupta W/o Anil Gupta Aged About 40 Years R/o Baniya Para, Before Raj Building Durg ,chowk ,dhamtari District Dhamtari Chhattisgarh., District : Dhamtari, Chhattisgarh ... Appellant (s) versus Vikash Ransingh S/o Jagdish Rao Ransingh Aged About 49 Years R/o Maratha Para, Infront Of Daji Marathi School ,dhamtari District Dhamtari ,chhattisgarh., District : Dhamtari, Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Shikhar Bhkhatiyar, Advocate For Respondent(s) : Mr. Deepak Kaushik, Advocate Hon’ble Shri Justice Narendra Kumar Vyas Order on Board 25/03/2025 1. The Complainant has filed this acquittal appeal against the order dated 01.10.2018 passed by learned Chief Judicial Magistrate, Dhamtari in Criminal Case No. 192/2016 by which the learned Chief Judicial Magistrate has dismissed the complaint filed by the complainant under Section 138 of the Negotiable Instrument Act and acquitted the respondent. 2. Facts of the case, in brief, are that the complainant's husband was working as an Agent with the firm Archna Tractor and the accused was owner of the firm. He has taken Rs. 5 lakh as loan from the complainant’s husband and the said SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2025.04.01 16:23:21 +0530 2 loan account was given to the accused through its bank account maintained in Canara Bank, Branch Dhamtari. The accused to discharge his liability has given a cheque bearing No. 035704 dated 20.12.2015 for Rs. 5 lakhs of the bank account maintained in the Canara Bank, Branch Dhamtari. The complainant has deposited the said cheque which was dishonoured and returned back to the complainant with an endorsement “cheque was dishonoured due to insufficient fund” on 23.12.2015 and the said cheque returning memo was received on 24.12.2015 by the complainant. 3. The appellant sent a legal notice to the respondent/accused through his counsel on 19.01.2016 which has been received by the respondent on 21.01.2016 but he has neither paid amount to the complainant nor replied to the said notice which has necessitated the complainant to file a complainant under Section 138 of the NI Act. 4. The complainant to substantiate his case has exhibited documents i.e. copy of pass book Ex.P-1, statement of the account Ex.P-2, acknowledgment receipt Ex.P-3, legal notice Ex.P-4, Cheque No. 035704 Ex.P-5, deposit slip Ex.P-6 and memo Ex.P-7. 5. The complainant has submitted affidavit under Section 145 of the NI Act. The complainant was cross examined by the counsel for the accused wherein she has submitted that her husband used to work as an Agent with Archana Tractor and he was doing the sale of tractor. She has submitted that she is income tax payee but she has not submitted income tax return of Financial Years 2014, 2015 and 2016. She has admitted that in the statement of bank account transaction has been mentioned. The accused did not examine any witness in his support but he was examined under Section 313 CrPC wherein he has stated that he has been falsely implicated in this case. 3 6. Learned Trial Court has dismissed the complaint vide impugned order dated 01.10.2018 after appreciating the bank account and transaction taken place in the bank account and recorded its finding that it cannot be possible that due to transaction and after withdrawal of the amount the said amount of Rs. 5 lakhs cannot be transmitted in the account of the accused as there was not enough amount for transferring as such there is doubt with regard to actual transaction of the money. It has also recorded its finding that even the accused is unable to prove that he has taken any loan or debt from the complainant, as such learned trial Court has dismissed the complaint. Being aggrieved with this order, the complainant has preferred this acquittal appeal. 7. Learned counsel for the appellant would submit that the finding recorded by the trial court is perverse, illegal and contrary to the evidence on record. He would further submit that the cheque was given wherein the accused has admitted its signature and there was no rebuttal on the part of the accused regarding transfer of money from the bank account of the complainant, therefore, the trial Court has committed illegality in applying reverse burden of proof on the complainant and would pray for allowing the appeal. 8. On the other hand, learned counsel for the respondent would submit that the finding recorded by the trial Court is legal, justified which does not warrant interference by this Court. He would further submit that no evidence was laid by the complainant to prove that the cheque was given for any debt or liability which is incumbent upon the complainant to first establish then only burden of proof is shifted upon the accused and would pray for dismissal of the appeal. 9. I have heard learned counsel for the parties and perused the record. 10. Considering the fact that learned trial Court in its judgment has extensively gone through the statement of bank account submitted by the complainant herself and taken note of the fact that there were two entries 4 made in the bank account before 7.4.2014 and the opening balance was Rs. 2,20,868 thereafter two cheques Rs. 1,50,000/- each was deposited in the bank account which enhanced the deposit in the bank to the tune of Rs. Rs. 520868/-thereafter on 07.04.2014 Rs. 1,50,000/- was withdrawn from the account then Rs. 3,70,868/- was available in the account. Subsequently the cheque was given on 18.04.2014 wherein it has been mentioned that Rs. 5,00,000/- fund transferred to Archan Tractor bearing cheque No. 875616 as such there would be minus balance of Rs. 1,29,132/- thus the trial Court recorded its finding that the manner in which transaction was done by the complainant it creates doubt over genuineness of the bank transaction and probably it is fictitious. It has also recorded its finding that no explanation was given by the appellant in this regard before the trial court. The trial Court has also recorded its finding that even the complainant has nowhere stated that whether the payment was made to Archana Tractor Dhamtari or Durg. The trial Court has also recorded its finding that no document relating to transaction of huge amount has been placed on record thus the learned trial Court after analyzing the fact, evidence, material on record has held that the accused was unable to prove that the cheque was given towards debut or liability which is paramount consideration for attracting Section 138 of the NI Act therefore, I am of the view that the finding recorded by the trial Court cannot be said to suffer from perversity or illegality warranting any interference by this Court. 11.Accordingly, t the acquittal appeal being devoid of merit is liable to be and is hereby dismissed. (Narendra Kumar Vyas) Judge santosh