1 2025:CGHC:43931 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 806 of 2019 1 - Praveen Kesharwani S/o Taranath Kesharwani Aged About 38 Years Address Authorized Seller And Proprietor Of Tara Motors Sonalika Tractors, Bilaspur Road, Kawardha, Kabirdham Chhattisgarh. ... Appellant versus 1 - Dukaram Gond S/o Ganesh Gond Aged About 53 Years R/o Village - Renda, Post - Surajpura, Tehsil Lohara, District Kabirdham Chhattisgarh. ... Respondent(s) For Appellant : Shri Samir Singh, Advocate. For Respondent(s) : None, though served. Hon'ble Shri Deepak Kumar Tiwari, J Judgment on Board 29/08/2025 1. The present Acquittal Appeal has been preferred against the judgment dated 4th September, 2019 passed by the Additional Sessions Judge, Kabirdham in CRA No.101/2018 whereby the Additional Sessions Judge while allowing the Appeal, set aside the judgment of conviction and order of sentence passed by the Judicial Magistrate 1st Class, Kawardha, in Criminal Case No.324/2018, whereby the respondent/accused has KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.08.29 17:31:02 +0530 2 been convicted under Section 138 of the Negotiable Instrument Act, 1881 and sentenced to undergo RI for 6 months & to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo RI for 3 months. 2. Facts of the case are that the appellant/complainant has filed a complaint case on 26th March, 2018 stating that he is the permanent dealer of the Sonalika Tractors. On 16.1.2017, the respondent/accused has purchased a Rota Vetar on credit vide bill Ex.-P/7 and promised to pay the cost of the said item/goods within a period of 3 months. On repeated demands, the respondent/accused has given the cheque dated 30.10.2017 (Ex.-P/1) in the name of the firm namely, Tara Motors. When the said cheque was presented for encashment (Ex.-P/2), the same got dishonoured, which was communicated by the Bank vide Ex.-P/3. Thereafter, legal notice (Ex.-P/4) was sent through registered post vide Ex.-P/5, which was received by the respondent/accused vide acknowledgment (Ex.-P/6). Despite receiving the said notice, when the cheque amount was not paid, the complaint case was filed. 3. During trial, the respondent/accused abjured his guilt and claimed to be tried. 4. In order to prove his case, the complainant has examined himself and exhibited 8 documents viz. Cheque (Ex.-P/1), deposit slip (Ex.-P/2), return memo (Ex.-P/3), legal notice (Ex.-P/4), postal receipt (Ex.-P/5), postal acknowledgment (Ex.-P/6), Bill (Ex.-P/7) and copy of the ledger (Ex.-P/8). In the statement recorded under Section 313 of the CrPC, the respondent/accused has pleaded false implication and examined one 3 defence witness i.e. the then Manager of the complainant Shamsher Singh (DW-1). The trial Court after evaluating the evidence convicted and sentenced the respondent/accused against which the respondent/ accused has preferred an Appeal, which was allowed by the impugned judgment. 5. Learned counsel appearing on behalf of the appellant would submit that the appellate Court has not appreciated the evidence in proper perspective, though the trial Court has assigned cogent reasons for recording conviction, and the finding is well merited, however, without assigning cogent reasons, the appellate Court has reversed the said finding. Learned counsel for the appellant prays to allow the Appeal and convict the respondent/accused. 6. None appears for the respondent though served. 7. I have heard learned counsel for the appellant and perused the impugned judgment of acquittal as also other material available on record with utmost circumspection. 8. Admittedly, the cheque (Ex.-P/1) was drawn in the name of the firm Tara Motors and the complaint has also been filed by Pravin Kesharwani (CW-1), as Proprietor/Partner of the said concern. In support of the complaint, no documentary evidence has been filed. Learned counsel for the appellant has also not disputed the aforesaid fact. 9. In the matter of Milind Shripad Chandurkar Vs. Kalim M. Khan [(2011) 4 SCC 275], it has been observed that if the complainant has no documentary evidence to prove nexus or connection between the alleged proprietor of the firm and the firm, he has no locus standi to file the 4 complaint under the NI Act and mere statement on affidavit in this regard is not sufficient to meet the requirement of law. Para 26 & 27 of the aforesaid judgment are reproduced hereunder for ready reference:- "26. In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole proprietor of the concern and being so, he could also be payee himself and thus, entitled to make the complaint. The appellant miserably failed to prove any nexus or connection by adducing any evidence, whatsoever, worth the name with the said firm, namely, Vijaya Automobiles. Mere statement in the affidavit in this regard, is not sufficient to meet the requirement of law. The appellant failed to produce any documentary evidence to connect himself with the said firm. 27. It is evident that the firm had a substantial amount of business as in one month it sold the diesel to Respondent 1 - a single party, for a sum of Rs. 7 lakhs. The appellant would, in addition, have also been carrying out business with other persons. Thus, a person with such a big business must have had transactions with the bank and must have been a payee of income tax, sales tax etc. Thus, in such a fact- situation, there would be no dearth of material which could have been produced by the appellant to show that he was the sole proprietor of the said firm. The appellant failed to adduce any evidence in this regard, nor made any attempt to adduce any additional evidence at the appellate stage, in spite of the fact that the respondent is raising this issue from the initiation of the proceedings. " 10. In the present case also, complainant Pravin Kesharwani (CW-1) has not filed any document to demonstrate that he is the Proprietor/Partner of the concern namely, Tara Motors and as such, when the complainant himself has failed to produce any documentary evidence to connect himself with the said firm, mere statement in this regard is not sufficient to meet the 5 requirement of law. Furthermore, the respondent/accused has denied the transaction and the transaction itself is under cloud. Perusal of the bill (Ex.-P/7) which was filed in original during trial would show that the same does not bear the signatures of the receiver/customer. In cross- examination, the complainant has admitted the fact that he has not obtained the signatures of the accused in the bill and further explained that the bills are prepared in two copies in original. Perusal of the bill would show that the same is not prepared in printed bill book and it appears that the same has been generated through the computer. However, the particulars of the bill viz bill number, date etc. has been mentioned manually. When the bill is generated through computer, it is required to be maintained in chronological manner. When the respondent/accused has denied the transaction, burden lies on the complainant to prove the fact that the said item/article/goods has been delivered. The respondent/accused has taken further defence that at the time of purchase of the tractor, he has given the cheque (Ex.-P/1) as security. This fact has also been admitted by the then Manager of the complainant i.e. Shamsher Singh (DW-1). He has further deposed that the complainant has not delivered any item/article/goods except Sonalika tractor and Nangar, for which a delivery receipt (Ex.-D/1) has also been given by the accused. 11. It is in this background, taking into consideration the aforesaid evidence, the appellate Court has extended the benefit in favour of the respondent/ accused and has drawn the conclusion that the respondent/accused has successfully discharged the burden to rebut the presumption that there 6 was enforceable liability against him for which the cheque was issued. 12. Moreover, it is equally settled that when two views are possible, then the view which is favourable to the accused should be taken. {See : Budh Singh vs. State of U.P. [(2006) 9 SCC 731] & V.N. Ratheesh vs. State of Kerala, [(2006) 10 SCC 617]. 13. On the basis of aforesaid discussion, this Court is of the opinion that the view taken by the appellate Court is possible one and no case is made out for interference in the impugned judgment of acquittal passed by the appellate Court. 14. In the result, the Appeal fails and the same is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Barve