Nafr High Court
Case Details
1 AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.05.09 10:32:34 +0530 2025:CGHC:21001 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1304 of 2025 1 - Sundar Lal Lahare S/o Late Shri Daulat Ram Lahare Aged About 70 Years R/o Near Satnam Bhawan, Veer Shivaji, Ward No. 07, Khamtarai, Raipur (C.G.) ... Petitioner/complainant. versus
Legal Reasoning
1 - Pawan Kumar Singh S/o Shri Tribhuvan Singh Aged About 48 Years R/o Block No. 202/3, Deputy Chief Electrical Engineer (Construction), Opposite Railway OfÏce, Railway Institute, Engineering Colony (Kharoon Rail Vihar) Phaphadi, Raipur Tehsil And District Raipur, (C.G.) ... Respondent/Accused. For Petitioner : Shri Raja Sharma, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 07/05/2025 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 24.02.2025 passed by the Judicial Magistrate First Class, Raipur (Chhattisgarh) in Criminal Complaint Case No.3471/2018, whereby, the respondent/accused was acquitted of the 2 charges under Section 138 of the Negotiable Instruments Act, 1881 (henceforth “the Act, 1881”). 2. As per the averments in the complaint, the respondent/accused is a friend of complainant’s son. It has further averred that the respondent/accused purchased a plot in the year 2011, in which, there was some outstanding dues. For the payment of the aforesaid amount, the respondent/accused obtained a loan from the complainant, who, on 07.08.2015, gave a cash loan amounting to Rs.2,50,000/- and on 05.10.2015, Rs.2,25,000/- to the respondent/accused. The Respondent/accused executed a promissory note in favour of the complainant and promised to return the borrowed amount after construction of his house. For repayment of the aforesaid loan, the respondent/accused gave a cheque of Rs.4,50,000/- on 08.08.2017, but the payment of the said cheque was not made. Thereafter, the respondent/accused borrowed additional loan of Rs.2,00,000/-, which was also given by the complainant on 08.08.2017, and thereby in aggregate, the complainant advanced loan of Rs.6,50,000/-. For repayment of the same, on 15.09.2017, a cheque was given for Rs.6,50,000/-, however, in exchange of the said cheque, the respondent/accused, issued a fresh cheque dated 31.12.2017 (Ex.P/1). When the said cheque was presented for encashment, the same got dishonoured vide Ex.P/2 owing to the fact that the respondent/accused had stopped the payment. Thereafter, a legal notice dated 30.03.2018 was sent vide Ex.P/3 to the respondent/accused. Despite said notice, payment was not made, therefore, a complaint has been filed. 3. In order to prove its case, complainant examined himself and one of the Bank employees namely Ganesh Chandrakar (CW-2) and exhibited 13 documents. 3 4. Respondent/accused examined himself and exhibited 6 documents. He took a defence that the complainant collects money by playing B.C. (a form of chit fund). When the respondent/accused did not pay some of the installments, the complainant did not return the deposit money and also imposed heavy penalty and further by using criminal force, obtained a blank cheque, for which, a criminal complaint case (Ex. D/6) was also filed in Police Station Ganj, Raipur. 5. The Trial Court, after evaluating oral and documentary evidence, acquitted the respondent/accused. Hence this petition for grant to leave. 6. Learned counsel for the petitioner/complainant 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. 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 4 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 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
Decision
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 Singh1, 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 1 (2023) 10 SCC 148 5 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 of the present case, the respondent/accused has taken a specific plea that the complainant runs a business of extending loan by collecting money through chit funds. The said fact has also been accepted by the complainant in his statement. Respondent/accused has also produced the chits vide Ex.D/1 to Ex.D/5. He has taken a specific defence that when he did not pay some of the installments in time, the amount which was deposited with the complainant was not returned. He further deposed that on 09.02.2018, the complainant along with his son and others came to his house and snatched the blank cheque, for which, he made a complaint (Ex.D/6) to the Police Station Ganj District Raipur. The said cheque was misused by the complainant. 12.Indisputedly, collection of money by circulation scheme is banned in the State of Chhattisgarh under the Chhattisgarh Dhan Parichalan Skeem (Pratishedh) Adhiniyam, 1975. Section 3 of the said Adhiniyam clearly stipulates that no person shall promote or conduct any money circulation scheme or enroll as a member in any such scheme, or participate in it otherwise or remit or receive any money in pursuance of such scheme. Contravention of section 3 is punishable under Section 4 of the said Act. 13.In view of the aforesaid, this Court is of the view that the mode through which money has been collected is illegal, and further the subject cheque was issued in discharge of a legally recoverable debt is not established and 6 therefore, the trial Court has acquitted the respondent/accused on the ground that no offence under Section 138 of the Act, 1881 was made out. 14.For the foregoing, no case is made out for grant of leave. 15.Accordingly, this Petition being bereft of any merit or substance is dismissed. Avinash Sd/- (Deepak Kumar Tiwari) Judge