1 - Kailash Kirana Store Sakti Proprietor Bholaram Agarwal, S/o Late Kailash Agarwal, Aged v. 1 - Lakhanlal Chauhan S/o Bhondu Chauhan Aged About 52 Years R/o Village
Case Details
Page 1 of 5 2025:CGHC:12969 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 712 of 2024 1 - Kailash Kirana Store Sakti Proprietor Bholaram Agarwal, S/o Late Kailash Agarwal, Aged 32-Year, R/o Ward No. 4 Sakt, Tehsil Sakti, District Janjgir-Champa (C.G.) ... Appellant versus 1 - Lakhanlal Chauhan S/o Bhondu Chauhan Aged About 52 Years R/o Village - Tohiladihi, Sakti, Tehsil Sakti, District Janjgir-Champa (C.G.) ---- Respondent For Appellant
Legal Reasoning
: Shri Prashant Dadsena on behalf of Shri Hari Agrawal, Advocates For Respondent : Shri Ishwar Jaiswal, Advocate Hon'ble Shri Justice Narendra Kumar Vyas Judgment on Board KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.03.25 10:52:00 +0530 19.03.2025 1. This acquittal appeal has been filed by the appellant against the judgment dated 27.03.2021 passed by learned Judicial Magistrate First Class, Sakti, District Janjgir-Champa, in Criminal Case No. 404/2019, whereby the respondents/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, the Page 2 of 5 complainant filed complaint under Section 138 of the N.I. Act before the JMFC, Sakti alleging that the accused has taken Rs. 2,00,000/- as loan towards purchase of food grains from his shop. The accused had given the Cheque No. 006327 dated 02.02.2019 for a sum of Rs. 2,00,000/- drawn at the United Bank of India pertaining to bank account No. 2002010107037 maintained by him. The accused has assured the complainant that he will pay the amount by the end of December, 2018, if he fails to pay, then the complainant can encash the cheque given by him. It is also the case of the complainant that the accused failed to pay the amount till December, 2018, thereore, he deposited the said cheque to his bank account maintained in the Punjab National Bank on 02.02.2019, but the cheque got dishonouredon 04.02.2019 and returned with endorsement dishonoured due to insufficient fund. The complainant through his counsel sent legal demand notice on 15.02.2019 still the accused has not paid the amount, which has necessitated the complainant to file complaint under Section 138 of Negotiable Instruments Act, 1881 which was registered as Criminal Case No. 404/2019. 3. Learned trial Court taking cognizance of the complaint, summoned the accused. Pursuant to the said summon the accused entered appearance before the trial Court. During the trial the complainant examined himself as P.W./1 and exhibited documents namely bounced cheque (Ex.P/1), Forwarding Memo (Ex.P/2), Demand Notice (Ex.P/3), Postal Receipt (Ex.P/4) and Page 3 of 5 Acknowledgment (Ex.P/5). The accused has examined himself under Section 313 of the Cr.P.C. and other witnesses namely Gulabchand Agrawal (D.W./1) and Bhagirathi Patel, Head Cashier of the Bank (D.W./2). 4. Learned trial Court on the basis of evidence and materials placed on record, vide impugned order dated 27.03.2021 dismissed the complaint by recording its finding that the complainant has not produced any documents pertaining to transaction between them, therefore, the complainant is unable to prove that the cheque amount has been given on account of legal liability and accordingly it has dismissed the same. Being aggrieved with the dismissal of the complaint, complainant has filed the present Acquittal Appeal. 5. Learned counsel for the appellant would submit that the finding recorded by the learned trial Court that the complainant is unable to prove that the cheque has been given in view of the liability, is perverse and contrary to the evidence on the count as complainant has categorically in his evidence has demonstrated that the cheque was given by the accused towards liability, as such the finding is perverse and liable to be set aside by this Court. 6. Per contra, learned counsel for the respondent would submit that payment was required to be made to the defence witness Gulabchandra Agrawal who has categorically stated that accused has given two cheques one Lakh each on 07.01.2017 and 4.3.2017 whereas in the present case cheque pertains to Page 4 of 5 year 2019 as such there is no nexus between the transaction with the complainant and witness Gulabchandra Agrawal. Even otherwise, the complainant is unable to prove that the payment was made towards any liability. 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 should not interfere in the findings, therefore, would pray for dismissal of the appeal. 7. I have heard learned counsel for the parties and perused the record. 8. During the course of evidence the complainant in his cross- examination has admitted that the accused has given the cheque to him in December, 2017 and he has also admitted that blank cheque was given to him and contents of the cheque was not written in the handwriting of the complainant except his signature. The complainant has not placed any record to demonstrate that the cheque was given towards any liablity. The complainant has produced Ledger Account and state of his bank account wherein transaction has been shown to be made in the year 2017 whereas the cheque was dishnoured in 2019, which creates doubts that the cheque was given towards any debt and liability. 9. Considering this aspect of the matter 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 if one Page 5 of 5 view is taken by the trial Court which is more favourable to the accused then the trial Court could not normally disturbed or interfered, considering this aspect of the matter, the appeal deserves to be dismissed and it is dismissed.
Decision
10. No order as to costs. Deshmukh Sd/- (Narendra Kumar Vyas) Judge