1 2025:CGHC:20443 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1281 of 2025 1 - Satish Singh S/o Chandrashekhar Singh Aged About 27 Years R/o- House No. 608/8, Dindayal Colony, Mangla, P.S. Civil Line, Tahsil And District Bilaspur (C.G.) ... Petitioner/Complainant. versus 1 - Keshav Rajput S/o Beniram Rajput Aged About 30 Years R/o- Village Chhitapur, P.S. Mungeli, Tahsil And District Mungeli (C.G.) ... Respondent/Accused. For Petitioner : Shri Amit Soni, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 05/05/2025 1. Petitioner has filed this petition under Section 419 (4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 for grant of leave to appeal against the judgment of acquittal dated 24.01.2025 passed by the Judicial Magistrate First Class, Bilaspur (Chhattisgarh) in Criminal Case No.532/2018 whereby, the respondent/accused was acquitted of the charges under AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.05.07 19:08:54 +0530 2 Section 138 of the Negotiable Instruments Act, 1881 (henceforth “the Act, 1881”). 2. As per the averments made in the complaint, due to old relations, respondent/accused obtained a cash loan amounting to Rs.10,00,000/- for production of chhattisgarhi film from the complainant, without any interest and in this regard an agreement (not filed and proved) has also been executed on 07.11.2016. For repayment of the aforesaid loan amount, the cheque (Ex.P/1) was given and when the same was presented for encashment, it got dishonoured with an endorsement ‘account closed’ (Ex.P/2). Thereafter, a legal notice vide Ex.P/3 was sent, however, despite receiving the same, the cheque amount was not paid. Therefore, a complaint case was filed. 3. In order to prove its case, the complainant examined himself and exhibited 5 documents. Respondent abjured his guilt and deposed that he has been falsely implicated. 4. Learned trial Court, after evaluating the evidence, acquitted the respondent/accused. Hence this petition. 5. Learned counsel for the petitioner would submit that the trial Court has not appreciated the evidence in its proper perspective, though there is a legal presumption under Sections 118 & 139 of the Act, 1881. Learned counsel for the petitioner further submits that the respondent/accused has taken time for examining himself but he did not appear. Learned counsel for the petitioner submits that since the respondent/accused has not come forward for his examination, an adverse inference may be drawn against him. Lastly, he prays to allow this petition in view of the principles laid down in the matter of Rajesh Jain vs. Ajay Singh1. 1 (2023) 10 SCC 148 3 6. It is well settled that in criminal law, though the accused has a right to remain silent but has to prove the case on the basis of probability upon the evidence tendered by the complainant/prosecution itself. 7. I have heard learned counsel for the petitioner and perused the record with utmost circumspection. 8. In the matter of Budh Singh vs. State of U.P. [(2006) 9 SCC 731], the Hon’ble Supreme Court held that in a matter of Appeal against acquittal, the High Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidences on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. 9. Further, in the matter of V.N. Ratheesh vs. State of Kerala, (2006) 10 SCC 617, the Hon’ble Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Hon’ble Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is further 4 held that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offence or not. It was also observed that the principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 10.In the matter of Rajesh Jain vs. Ajay Singh (supra), the law relating to the effect of legal presumption as per Section 118 and Section 139 of the NI Act has been clarified. As per Section 118 of the NI Act it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration and as per Section 139 of the Act “unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. Both the presumptions are rebuttable in nature. 11.Reverting back to the facts and circumstances of the present case, after examining the facts and circumstances of the case, in light of the principles laid down by the Hon’ble Supreme Court in the above- mentioned cases, admittedly, the financial capacity of complainant was challenged by the respondent/accused and the complainant has stated in examination in chief that he is unemployed and he is earning about Rs.2-3 5 lakhs in a year from agricultural work. He further admits that he has not filed any Income Tax Return though he has given a cash loan of Rs.10 lakhs and at the time of giving the aforesaid loan, no receipt was obtained and further no document has also been proved with regard to such loan. Complainant, in his cross-examination, at para 16 clearly admitted that as to when, where and before whom he has given the aforesaid loan has not been mentioned. He also admits that in how many installments the aforesaid loan has been given has also not been mentioned. The complainant also admitted the fact that he is the producer of the film namely तोर बिना, which was under production by the complainant and the accused jointly but the said film has not been completed. 12. A defense has been taken by the respondent/accused that for the production of the aforesaid film, he had kept some blank cheques in the office, which was misused by the complainant. Though the said fact has been denied by the complainant but considering the statement of complainant, it appears to be probable. Therefore, this Court is of the opinion that from the aforesaid backdrop, the respondent/accused has successfully rebutted the presumption under Sections 118 & 139 of the Act, 1881 and the finding arrived at by the trial Court is a possible one, which does not warrant any interference. 13.For the foregoing, no case is made out for grant of leave. Resultantly, this Petition is dismissed. Sd/- (Deepak Kumar Tiwari) Judge Avinash