1 2025:CGHC:9863 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 602 of 2024 • Marut Singh Parihar S/o Manohar Singh Parihar Aged About 37 Years R/o- Jogipur, Post- Marka, P.S.- Pipariya, Tehsil- Kawardha, District- Kabirdham, Chhattisgarh ... Appellant. versus • Harish Vaishnav S/o Lakhandas Vaishnav Aged About 45 Years R/o- Rajendra Ward, Behind Radhakrishna Mandir, Dewangan Para, Mungeli, District- Mungeli, Chhattisgarh ... Respondent For appellant. : Mr. Pallav Mishra, Advocate. For Respondent : Mr. Shubham Dwivedi, Advocate appears on behalf of Mr. Atul Kumar Kesharwani, Advocate. (Hon’ble Mr. Justice Narendra Kumar Vyas) Order on Board 27/02/2025 1. This acquittal appeal has been filed by the appellant against the acquittal of order dated 2-3-2020 passed by learned Judicial Magistrate First Class, Kabirdham District Kawardha in Complaint 2 Case No. 2080 of 2019 whereby the respondents/accused has been acquitted of the charges under Section 138 of the Negotiable Instruments Act. 2. The brief facts as reflected from the record are that the appellant and respondent are well acquainted to each other and due to previous relationship, the respondent asked for payment of amount of Rs. 7,00,000/- from the appellant for construction of his house and the appellant has given the amount of Rs. 7,00,000/- to the respondent. Thereafter, when the complainant demanded money from the accused/respondent, the respondent has given him a chqeue bearing No. 000889 from his saving bank account bearing No. 3471976187 of Central Bank of India, Branch Mungeli. for repayment of the said amount. The said cheque was deposited by the appellant before the Bank for disbursement of amount, but the same got dishonoured due to insufficient fund in the Bank account of the respondent. The appellant through his counsel sent a legal demand notice to the accused/respondent. Neither the accused has replied to the said notice nor has paid the said amount to the complainant, therefore, the complainant has filed a complaint under Section 138 of Negotiable Instruments Act, 1881 against the respondent/accused which was registered as Criminal Case No. 2080 of 2019. 3. During the trial the appellant examined himself by way of an affidavit under Section 145 of the Cr.P.C. reiterating the contentions raised in the complaint. The complainant to prove his case has exhibited cheque as Exhibit P/1, return memo as Exhibit P/2, forwarding memo of the bank Exhibit P/3, registered notice under Section 138 of N.I. Act given to accused as Exhibit P/4 receipt (Ex.P/5), return of notice along with 3 envelop (Ex.P/6), postal receipt, Envelope Exhibit P/7 which has been returned with endorsement “not claimed”. The complainant was cross- examined by the accused wherein he has admitted that the accused has taken Rs1,00,000/- on 13-6-2017 . The appellant has also denied that he is doing the financial transaction. He has also admitted that he is not aware on which date the cheque was returned back. He has also admitted that he is not aware on which date he has served notice upon the accused. The complainant has also examined the Post Master to substantiate the notice. 4. The accused has examined himself under Section 313 of the Cr.P.C. and denied the allegation made against him. He has also examined the witness Ravikant Vaishnav who has supported the case of the accused and has stated that the complainant in his cheque has wrongly mentioned the amount of Rs.7,00,000/-, therefore, the complaint is not maintainable. This witness was extensively cross examined and he has stated that from the bank account an amount of Rs.1,00,000/- has been drawn which has been deposited in the name of Maruti. He has also admitted that the cheque pertains to 20-9- 2018. He has also stated that the accused has given blank cheque to the complainant. He has also admitted that there is difference of one year between the statement of account and cheque forwarding memo. He has also admitted that his uncle granted him loan of Rs.2,00,000/- which he has already paid to him and the cheque given to him has been misused. 5. Learned trial Court vide impugned order dated 2-3-2020 dismissed the complaint by recording the finding that the complainant is unable to prove that the cheque amount has been given on account of legal 4 liability and accordingly it has dismissed the same. Being aggrieved, complainant has filed the present Acquittal Appeal. 6. Learned counsel for the appellant would submit that he has filed the additional document to demonstrate that Rs.7,00,000/- has been withdrawn from the Bank Account and the said amount was given to the accused. He would further submit that the finding recorded by the learned trial Court that the complainant is unable to prove that the cheque has been given in lieu of the liability, is perverse and contrary to the evidence, therefore, the trial Court committed illegality and irregularity which warrants interference by this Court and would pray for allowing the appeal. 7. Per contra, learned counsel for the respondent opposing the aforesaid submission would submit that since the document has not been taken on record to substantiate the submission that the complainant has given Rs.7,00,000/-, to the accused, at the stage of appeal and it would amount to creation of new evidence which is not permissible in view of bar contained under Section 391 of Cr.P.C. He would further submit that the learned trial Court has rightly recorded its finding that the cheque was not issued by him for discharge of any legal liability. He would further submit that the burden of proof lies with the appellant which he utterly failed to discharge as no material was placed on record to substantiate that cheque was given towards debt or liability by the accused. He would further submit even otherwise, when two views are possible and if one view which is favourable to the accused is taken by the trial Court, the appellate Court normally does not interfere in the findings, therefore, he would pray for dismissal of the appeal. 5 8. I have heard learned counsel for the parties and perused the record. 9. From the submissions made by the parties, the point emerges for determination of this Court is whether the finding of dismissal of the complaint is legal and justified. 10. To appreciate this point, this Court has already extracted the evidence already recorded before the learned trial Court in foregoing paragraph. From bare perusal of the record, it is quite vivid that the the complainant has nowhere pleaded that where he has given the amount of Rs.7,00,000/- to the accused since it is a cash amount. Therefore, it is incumbent upon the complainant to file relevant documents to demonstrate that the amount has been given to the accused by way of any debt or liability, but no such material has been placed on record. Similarly, accused witness namely Ravikant Vaishnav in his evidence has categorically stated that he has already paid Rs.1,00,000/- and thereafter remaining amount has also been paid as he has taken the loan of Rs.2,00,000/- only. As such, in this way, the accused has discharged his burden and now the burden lies upon the complainant,, therefore, it is incumbent upon the complainant to plead and prove by cogent evidence that the amount of Rs.7,00,000/- has been withdrawn and same has been given to the accused but no such material has been placed on record by the complainant to demonstrate that the cheque was given in lieu of any debt. 11. Considering the entire evidence and materials on record which clearly demonstrate that the complainant is unable to establish that the cheque was given towards any debt or liability which he has to discharge then only the presumption under Section 139 of N.I. Act can be drawn in favour of the complainant which he has not proved by placing cogent material and evidence, as such I am of the view that the trial Court's finding does not suffer from any perversity or illegality and also considering the well settled position of law that when two views are possible in a case, the view that 6 favours the accused must be adopted by the trial court and the appellate Court normally does not disturb or interfere in the finding of the trial Court. 12. Considering this aspect of the matter, the appeal deserves to be dismissed and accordingly it is dismissed. 13.No order as to costs. Sd/- (Narendra Kumar Vyas) JUDGE Raju RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.03.24 16:14:47 +0530