1 - Teekaram Patel S/o Birendra Patel Aged About 30 Years R/o Village Gighapali v. 1 - Hitesh Patel S/o Jeevan Prakash Patel Aged About 30 Years R/o Bhanwarchuvan
Case Details
Page 1 of 9 2025:CGHC:21127 NAFR Reserved On : 03.03. 2025 Pronounced On : 08.05.2025 HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 12 of 2025 1 - Teekaram Patel S/o Birendra Patel Aged About 30 Years R/o Village Gighapali Post- Bhukel P.S. And Tehsil- Basna, District- Mahasamund (Chhattisgarh) ... Appellant versus 1 - Hitesh Patel S/o Jeevan Prakash Patel Aged About 30 Years R/o Bhanwarchuvan (Madhuban) Post- Badesajapali, Tehsil And P.S.- Basna, District- Mahasamund (Chhattisgarh) ... Respondent For Appellant : Mr. Premshankar Yadav, Advocate For Respondent :
Legal Reasoning
Mr. Prachi Singh, Advocate Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. JUDGMENT 1. This acquittal appeal has been filed by the appellant against the judgment passed by learned Judicial Magistrate First Class, Basna District Mahasamund dated 14.11.2024 in Complaint Case No. 304/2023 whereby the respondent/accused has been acquitted of the charges under Section 138 of the N.I. Act. 2. The brief facts as reflected from the record are that 2.A) The appellant had filed a complaint case stating that he is the Page 2 of 9 owner of Bajaj Motorcycle showroom Yash Auto' at Singhanpur. The appellant and respondent are old friends and due to that when respondent was in need of money for his household, the respondent had borrowed sum of Rs. 5,00,000/ in June 2022 from the appellant, and the respondent accused assured appellant that he will return the borrowed amount of Rs. 5,00,000/- by December 2022. 2.B) Thereafter when the accused respondent did not return the borrowed amount of Rs 5,00,000/- to the appellant in December 2022, the appellant demanded his money verbally and through phone calls but the respondent kept giving excuses and finally on 12.01.2023, the respondent gave a signed cheque of Rs. 5,00,000/- of the State Bank of India Bichhiya branch cheque bearing No. 391190 in the name of appellant and assured the appellant that he may get his money by presenting the cheque in any nationalised bank. 2.C) On the same date i.e. on 12.01.2023, the appellant presented the said cheque for encashment before the Bank of Baroda, Basna branch in his account bearing no 87260100039804. On 13.01.2023, the said cheque bearing No. 391190 has been dishonoured and returned to the appellant with endoresement that the account is closed. 2.D) After the said cheque got dishonoured by bank, the appellant intimated the same to respondent but he did not pay any Page 3 of 9 heed nor returned the amount of appellant, and therefore on 02.02 2023, the appellant served a legal demand notice through his counsel. On 16.02 2023, the respondent replied to the legal demand notice served by the appellant and denied the averments made by the appellant and has stated that he met the appellant on 26.05.2018 in a get together reunion of school and on the same day he lost his cheque book, ATM, passbook, and school certificates and probably he has misused the cheque and also asked the complainant to return the same failing which he will file a complaint under Section 384 of the IPC. 2.E) Thereafter, a complaint case under section 138 of NI Act has been filed by the appellant against the respondent and the trial was conducted. 3. The complainant to prove his case has examined himself by way of an affidavit as provided under Section 145 of N.I. Act, 1881 and exhibited documents i.e. Desposit Slip(Exhibit P/1), Cheque bearing No. 391190 dated 12.01.2023 (Exhibit P/2), Cheque Return Memo (Exhibit P/3), Notice dated 02.02.2023 (Exhibit P/4), Postal Receipt (Exhibit P/5), Acknowledgment (Exhibit P/6), School Photograph (Exhibit P/7), Mark-sheet (Exhibit P/8), Bank Statement (Exhibit P/9), Transaction Details (Exhibit P/10), Form B-1 (Exhibit P/11) in support of his contension. The complainant in his examination-in-chief reiterated the stand taken in the complaint and contended that the cheque given by the accused was dishonoured on Page 4 of 9 13.01.2023 with endorsement “Account Closed”. The complainant was extensively cross-examined wherein he has admitted in paragraph 24 that the accused has given reply to the notice and he has also stated that he is not aware whether the accused has lodged FIR against him under Section 384 of the IPC. The Court has asked him who has written the name in the cheque then he has stated that accused has told him to fill up the cheque and can be submitted in any nationalised bank. He has also admitted in the cross-examination that he has neither mentioned in the complaint nor in examination-in-chief that earlier accused has taken money which he has returned to the complainant. He has also admitted that the amount of Rs. 5,00,000/- has been given in cash to the accused and he has admitted that has not executed any written document in this regard. He has also admitted that his earning in the year 21-22 was only 5,00,000/- and in the year 2022-23 was Rs. 5,30,000/-. 4. The accused has not examined any witnesses, but he has been examined under Section 313 of Cr.P.C. and exhibited documents intimation of missing of cheque book before Police Station (Ex.D/1), intimation of missing passbook (Ex.D/2), intimation of missing ATM (Ex.D/3), Reply of notice through his counsel (Ex.D/4). He has stated that he has neither taken any loan nor any transaction with the complainant has been taken place. He has also stated that the cheque No. 391190 was missed in 2018 and a complaint was also lodged in the Police Page 5 of 9 Station in this regard. On the basis of evidence and materials on record, the learned trial Court has recorded its finding that the complainant has not proved that he has given money to the accused and cheque was given towards debt or liability. Accordingly, by the impugned order the trial Court has dismissed the complaint and acquitted the accused. Being aggrieved with this order the complainant has filed this acquittal appeal. 5. Learned counsel for the appellant would submit that the learned trial court has failed to appreciate the evidence available on record and wrongly acquitted the accused. He would further submit that the appellant has stated his source of income and also established financial capacity by proving the statement of bank account Ex.P/4. The appellant had successfully discharged the burden of proving that he was capable of giving loan at that time, therefore, trial Court should have drawn presumption in favour of the appellant. It has been further contended that the trial Court has committed illegality in recording its finding that essential ingredients of Section 138 of N.I. Act, 1881 has not been proved. He would further submit that the respondent is a habitual offender and other similar cases have already been registered against him. Thus, he would pray for allowing the appeal. 6. On the other hand, learned counsel for the respondent would submit that the complainant has not placed on record to Page 6 of 9 demonstrate that the said cheque was given by the accused towards any debt or liability and thus he would pray for dismissal of the appeal. 7. I have heard learned counsel for the parties and perused the record. 8. Considering the rival submissions of the parties, the point emerged for determination by this Court is whether the finding of acquittal recorded by the learned trial Court is perverse and contrary to the law, as such liable to be interfered by this Court while exercising its appellate jurisdiction? 9. To appreciate the point framed by this Court, it is expedient for this Court to go through the evidence brought on record. 10. From the evidence on record it is quite vivid that the appellant was able to establish his financial capacity to pay the amount though no such defence was taken by the accused. The complainant in his evidence has categorically stated that the accused is his batchmate and in good faith he has given the amount of Rs. 5,00,000/- in cash. Despite the disbelief of the defence taken by the accused that the cheque, passbook have been lost and no FIR under Section 384 of the IPC has been registered by the accused against the appellant, the learned trial Court has committed illegality in dismissing the complaint. The entire evidence and materials placed on record clearly established that the complainant is able to establish presumption in his favour Page 7 of 9 regarding drawing of the cheque which has not been rebutted by the accused. Thus, the impugned order dated 14.11.2024 suffers from perversity, illegality warranting interference by this Court. Even, the learned trial Court has not given any reason how the complainant is unable to establish that Rs. 5,00,000/- was given by the complainant and the cheque was given towards debt and liability. As
Decision
such, the impugned order is against the law laid down by the Hon’ble Supreme Court in case of Tedhi Singh vs. Narayan Das Mahant {2022 (6) SCC 735} wherein the Hon’ble Supreme Court has held in paragraph 10 and 13 as under :- 10. The Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence. Page 8 of 9 13. It is relevant to notice that DW5 has further deposed that when the appellant received the notice he asked him about the cheque book and then he told him about the incident of the loss of cheque book. Still, at the time when the reply notice was sent, the case is not set up about the loss of cheque book and about the cheque relied upon by the respondent being one which is brought into existence using the lost signed cheque leaf. We have already noticed that there is no evidence to establish that the appellant had informed the Bank about the loss of the cheque book containing blank cheque. In fact, In the statement under Section 313 Cr.PC. appellant had stated that this cheque book containing a blank cheque was lost. Appellant has no case that the signature on the cheque in question was not put by him. 11. Consequently, the impugned finding is also supported by the reasoning that no independent witness was examined and stand taken by him that the FIR under Section 384 IPC which has been lodged has also not been placed before the trial Court which itself is sufficient to disbelieve the defence, still the Trial Court committed illegality in dismissing the complaint. 12. Considering the fact and law on the subject, it is quite vivid that the learned trial Court has committed illegality in recording its finding of fact that cheque was not given towards any debt or liability and also considering that the appellate court can very well disturb the finding of acquittal if cogent or vital materials have been ignored by the trial Court and there is a clear chance of conviction of the accused which is present in this case. As the trial Court has not considered the evidence and materials placed on record as such, it is a perversity in the findings of the trial Court which warrants interference in the acquittal appeal, the acquittal appeal deserves to be and it is hereby allowed. Page 9 of 9 13. Consequently, the impugned judgment is quashed. The accused is directed to pay Rs. 5,00,000/- to the complaint and Rs. 50,000/- as compensation which is payable to the complainant within 3 months from the date of order, failing which, the accused shall undergo 3 months Simple Imprisonment. KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.05.12 10:49:06 +0530 Deshmukh Sd/- (Narendra Kumar Vyas) Judge