Vinay Kumar Sood vs Bali Nagvanshi
2022 Latest Caselaw 3207 Chatt

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                               Acquittal Appeal No.131 of 2016

                              Judgment Reserved on : 22.3.2022
                              Judgment Delivered on :           4.5.2022

Vinay Kumar Sood, S/o Late Mahendra Singh Sood, aged about 55 years,
R/o Main Road, Dantewada, P.S. Dantewada, District South Bastar
Dantewada, Chhattisgarh
                                                                ---- Appellant
                                    versus
Bali Nagvanshi, S/o Late Buter, aged about 48 years, R/o Sun City Jagdalpur,
P.S. Kotwali Jagdalpur, District Bastar, Chhattisgarh
                                                            ---- Respondent

-------------------------------------------------------------------------------------------------------

For Appellant              :       Shri P.R. Patankar, Advocate
For Respondent            :        Shri Vishnu Koshta and Shri Shobhit Koshta,
                                   Advocates

-------------------------------------------------------------------------------------------------------

Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal has been preferred against the judgment dated

6.1.2015 passed by the Chief Judicial Magistrate, Dantewada in

Criminal Complaint Case No.61 of 2013, whereby the Learned

Chief Judicial Magistrate has acquitted the Respondent/accused of

the charge under Section 138 of the Negotiable Instruments Act.

2. Facts of the case, in brief, are that the Appellant and the

Respondent were known to each other and were having cordial

relation. The Appellant/Complainant was doing a business of

grocery shop. When the Respondent/accused was in need of

money, the Appellant gave him Rs.7,00,000 on assurance that he

will refund the money. When the Appellant was in need of money

for his business, he demanded his money back from the

Respondent, but the Respondent due to one or other reason did

not refund the money to the Appellant. Ultimately, on 13.2.2013,

the Respondent gave a cheque of Rs.7,00,000 bearing number

11253 of Zila Sahakari Kendriya Bank. The cheque was presented

by the Appellant for clearance, but it was dishonoured and was

returned with an endorsement of insufficient fund. A legal notice

was given by the Appellant to the Respondent on 18.2.2013. A

reply of the said notice was sent by the Respondent vide Annexure

A4. As the Respondent did not refund the borrowed money of

Rs.7,00,000 within the stipulated time, the Appellant filed a

complaint under Section 138 of the Negotiable Instruments Act

before the Chief Judicial Magistrate, Dantewada. After recording

evidence and hearing the parties, the Chief Judicial Magistrate

acquitted the Respondent. Hence, this appeal by the Complainant.

3. Learned Counsel appearing for the Appellant/Complainant

submitted that the Court below has overlooked the presumption in

favour of the Appellant under Section 139 of the Negotiable

Instruments Act and consequently the Court below has committed

material error by acquitting the Respondent. The Respondent has

not adduced any evidence or material before the Court below to

rebut the presumption under Section 139 of the Negotiable

Instruments Act. Reliance was placed on AIR 2020 SC 945 (APS

Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers),

(2010) 11 SCC 441 (Rangappa v. Sri Mohan) and (2014) 12 SCC

539 (Indus Airways Pvt. Ltd. v. Magnum Aviation Pvt. Ltd.).

4. Learned Counsel appearing for the Respondent/accused opposed

the arguments advanced by Learned Counsel appearing for the

Appellant/Complainant. It was submitted that though there is

presumption under Section 139 of the Negotiable Instruments Act

in favour of the Appellant, it can be rebutted. Relying on (2014) 2

SCC 236 (John K. Abraham v. Simon C. Abraham), it was argued

that in the present case, from the evidence of the Appellant himself

it is well established that the Appellant was not aware of the date,

month and year when the substantial amount of Rs.7,00,000 was

given by him to the Respondent. He failed to produce the relevant

documents in support of alleged source of advancing money to the

Respondent. He was also not sure about who made entries of

Rs.7,00,000, the name of the Appellant and the date in the cheque

in question. Therefore, the Trial Court has rightly acquitted the

Respondent.

5. I have heard Learned Counsel appearing for the parties and

perused the record of the Court below including the evidence

adduced by the parties.

6. There is no dispute on the point that in the cheque (Annexure A1)

signature of the Respondent is present. Appellant Vinay Kumar

Sood in his cross-examination in paragraph 16 admitted the fact

that he did not remember that on what date or in which month he

gave Rs.7,00,000 to the Respondent. Though he stated that in the

year 2011 he gave the said amount to the Respondent, this fact is

not mentioned in his complaint, examination-in-chief and notice

(Annexure A3). From perusal of the reply (Annexure A4) of the

said notice, it also appears that from the beginning the Respondent

has denied the fact that he received Rs.7,00,000 as loan from the

Appellant. In his statement recorded under Section 313 Cr.P.C.

also, he denied the fact that he received any amount as loan from

the Appellant. In paragraphs 24 and 25 of his cross-examination,

the Appellant further admitted that he was not aware of the fact that

in the cheque, who made the entries of Rs.7,00,000 and the name

of Appellant as well as the year of 2013. From the above

admissions made by the Appellant, it also appears that a blank

signed cheque was given by the Respondent. From the entire

evidence adduced by the Appellant and his pleadings as well as his

admissions, it is clear that he was not aware that on what date and

in which month and in which year he gave the amount of

Rs.7,00,000 to the Respondent. In this regard, no documentary

evidence is also produced by the Appellant. Further, since

beginning, the Respondent has denied the fact that he had

received any amount as loan from the Appellant. In my considered

view, the Respondent has duly rebutted the presumption under

Section 139 of the Negotiable Instruments Act.

7. In the result, I do not find any illegality or irregularity in the finding of

the Learned Chief Judicial Magistrate. He has rightly acquitted the

Respondent. Hence, the instant appeal is dismissed and the

impugned judgment of acquittal is affirmed.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal