1 2025:CGHC:16258 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 31 of 2025 Achchhe Ram S/o Ganeshram Khatarjee Aged About 36 Years Occupation Transporting R/o Guru Ghasidas Nagar, Raigarh Chowk Jutmil, Tahsil And District Raigarh Chhattisgarh ... Appellant(s) versus Santosh Kumar S/o Manharan Lal Yadav Aged About 35 Years R/o Ward No. 1 Bhathapara, Saragaon, Nagar Panchayat P.S. Saragaon, District Janjgir-Champa Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Uday Pratap Singh Sahu, Advocate. For Respondent(s) : Mr. F. S. Khare, Advocate. SB : Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 07.04.2025 1. This Acquittal Appeal has been preferred against the judgment dated 07.11.2023 passed by the Judicial Magistrate First Class Raigarh (CG) in Complaint Case No.146/2018, whereby, the complaint of the appellant was dismissed and the respondent (accused therein) was acquitted of the charge for commission of offence under Section 138 of the Negotiable Instruments Act, 1881(for short "NI Act"). Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.04.08 14:45:03 +0530 2 2. As per complaint, the respondent has purchased Tata Vehicle LPT 1109 bearing Registration No.04 Z D 9623 from the appellant/complainant for consideration of Rs.5,11,000/-. At the time of purchase, the respondent has only paid an amount of Rs.61,000/- and for remaining amount he has given Cheque dated 05.12.2017 (Ex.P-1) to the complainant. However, when the complainant presented the cheque for encashment before the State Bank of India, Branch Kabir Chowk, Raigarh on 03.01.2018, the same was dishonoured due to insufficiency of funds and same was communicated to the complainant vide Ex.P-2. Thereafter, the complainant has sent the legal notice to the respondent and demanded the cheque amount, however, the respondent tried to evade the service of the said notice. Thereafter, the complainant made paper publication notice vide Ex.P-6 but of no avail. Subsequently, the complainant has filed complaint against the respondent/accused before the Judicial Magistrate First Class, Raigarh on 22.02.2018. 3. The respondent/accused denied the averments made in the complaint case. During trial in order to prove the case the complainant has examined himself and exhibited 7 documents i.e. Cheque dated 05.12.2017 (Ex.P-1), Communication of the return cheque (Ex.P-2), Registered notice, postal receipt dated 20.01.2018 which was returned to the complainant in closed envelop (ExP.-3, P-4 & Ex.P-5, respectively), Notice issued through paper publication (Ex.P-6) and legal notice dated 11-12/01.2018 (Ex.P-7). 4. On other hand, the respondent/accused examined himself and exhibited one document i.e. notice sent by him on 16.11.2017 (Ex.D-1) to the 3 effect that he has already paid Rs.2,04,000/- and that there was dispute regarding adjustment of the expenses incurred on the vehicle by respondent/accused. 5. Learned trial Court after evaluating the evidence on record reached to the conclusion that the complainant has not proved the notice sent by him on 05.01.2018 and only proved the subsequent notice (Ex.P-7) sent on 20.01.2018, thereby, the complainant failed to prove the first legal notice and also failed to prove as to in what manner information regarding dishonoured cheque was sent to the accused and consequently acquitted the accused for the offence under Section 138 of the NI Act by the judgment impugned. Being aggrieved by the said judgment, the complainant has preferred the instant acquittal appeal. 6. Learned counsel for the appellant/complainant submits that the trial Court has not appreciated the facts and evidence in proper perspective. He submits that though the first notice was not proved, however, subsequent notice regarding information of amount of cheque was duly proved by the complainant vide Ex.P-7. He would submit that since the second notice was proved by the complainant, the trial Court ought to have consider and decide the case on the basis of said notice. 7. Per contra, learned counsel for the respondent supports the judgment impugned and submits that the cause of action begins only when the first notice was served in terms of Section 142 (1) (b) of the NI Act as service of first notice is essential and it was required to be proved by the complainant in order to attract the offence under Section 138 of the NI Act. He submits that when first notice is proved only in that case 4 principle of merger can be applied in respect of the second notice. In such circumstances, the trial Court has not committed any error while passing the judgment impugned. 8. Heard learned counsel for the parties and perused the documents placed with the petition. 9. 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 evidences brought on record contrary to law. 10.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 5 innocence, the view which is favourable to the accused should be adopted. It is further 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. 11.It is well established that the High Court has full power to review at large the evidence upon which the order of acquittal was founded, however, the High Court should only interfere when the reasoning of the trial Court is totally absurd. In the matter of Prandas Vs. the State [1950 SCC 62 : AIR 1954 SC 36] the aforesaid principle was reiterated after relying the leading case of Sheo Swarup Vs. Emperor [AIR 1934 PC 227] which provided the following guidelines:- "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred 6 by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice.” 12.Reverting back to the present case, admittedly, the complainant failed to prove the first legal notice sent by him, which is essential to attract the limitation as provided under Section 142 of the NI Act. After service of first notice, if the cheque amount has not been paid within 15 days, the offence is considered complete and thus, cause of action arose in favour of the complainant. Moreover, even if the second notice has also been sent, the same can be clubbed/merged with the first notice. However, in the present case, the first notice was not proved by the complainant. In such circumstances, this Court is of the view that the finding arrived at by the trial Court was a possible view. 13.In light of the aforesaid principles and considering the facts of the case, this Court is of the considered opinion that there is no infirmity or illegality in the judgment impugned and the trial Court has not committed any error in acquitting the respondent/accused. 14.In the result, the appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Ajay