Chattisgarh High Court
S.K. Jain vs S. Suresh Kumar Naidu on 24 January, 2025
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 5
2025:CGHC:4450
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 719 of 2024
1 - S.K. Jain S/o Sonpal Jain Aged About 62 Years Resident Of Shop
No. 307, Zonal Market Sector -10, Bhilai, District - Durg,
Chhattisgarh. ........(Complainant)
... Appellant
versus
1 - S. Suresh Kumar Naidu S/o S. Ishwarsao Naidu Aged About 38
Years Resident Of Balk No. 13, Q. No. 14, Street No. 15 B, Sector -2,
Bhilai, District - Durg, Chhattisgarh. ...........(Assused)
---- Respondent
For Appellant : Shri Anil S. Pandey, Advocate
For Respondent : Shri Rishi Sahu, Advocate
Hon'ble Shri Justice Narendra Kumar Vyas
Judgment on Board
24.01.2025
1. This acquittal appeal has been filed by the appellant against the
judgment passed by learned Judicial Magistrate First Class,
Digitally
signed by
Durg, District Durg dated 10.04.2024, in Complaint Case RCC
KISHORE
KISHORE KUMAR
KUMAR DESHMUKH
DESHMUKH Date:
2025.02.21
10:53:04
+0530
No. 4535/2014, 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 appellant
and respondent are well acquainted to each other and due to
previous relationship, the respondent has asked for payment of
amount of Rs. 50,000/- from the appellant on account of
domestic need and the appellant has given the amount of Rs.
50,000/- to the respondent. The respondent has given him
chqeue valuing Rs. 50,000/- for repayment of the said amount.
The said cheque was deposited by the appellant before the Bank
for disbursement of amount, but the same got dishonoured due
to insufficient fund in the Bank account of respondent. The
appellant through his counsel sent legal demand notice on
21.01.2014 which was returned as not claimed by the accused
which has necessitated the complainant to filed complaint under
Section 138 of Negotiable Instruments Act, 1881 which was
registered as Criminal Case No. 0004535/2014.
3. During the trial the appellant examined himself by way of affidavit
under Section 145 of the Cr.P.C. reiterating the contentions
raised in the complaint. The complainant to prove his case has
exhibited cheque as exhibit P/1, Cheque depositing slip as
Exhibit P/2, forwarding memo of the bank Exhibit P/3, memo of
the bank as Exhibit P/4, Notice under Section 138 of N.I. Act
given to accused as Exhibit P/5 alongwith postal receipt,
Envelope Exhibit P/6 which has been returned with endorsement
"not claimed", Account opening form Exhibit P/7, Cheque Book
issue Registered Exhibit P/8, Cheque Return Outward Record
P/9, Statement of Account Exhibit P/10. The complainant was
cross-examined by the accused wherein he has admitted that he
is not aware how much amount he has given on loan to the
accused. The appellant has also admitted that whenever the
accused has taken money he has given cheque. He has also
admitted that he has filed four cases of the N.I. Act against the
accused. He has also admitted that he has not produced
document regarding entry of the amount paid to the accused. He
has admitted that he has not obtained license for money lending
and he used to give money only on good relationship. He has
also stated that he is income tax payee, however, he has not
produced income tax return. He has stated that he has given
money on 20.04.2013 to the respondent on the assurance that
he will return the money within a month, however, he has not
filed any document in this regard.
4. The complainant has also examined Mukund Bhobe (P.W. No. 2)
who is the Manager of the Bank and exhibited cheque, Deposit
Slip, Return Memo, Cheque Book Issue Register, Cheque
Return Register and statement of Bank Account. The accused
has examined himself under Section 313 of the Cr.P.C. and
denied the allegation made against him and stated that he has
given cheque towards security which been utilised by the
complainant.
5. Learned trial Court vide impugned order dated 10.04.2024
dismissed the complaint by recording the finding that 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, complainant has filed the
present Acquittal Appeal.
6. 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, therefore, committed
illegality and irregularity which warrant interference by this Court
and would pray for allowing the appeal.
7. Per contra, learned counsel for the respondent would submit that
learned trial Court has rightly recorded its finding that the cheque
was not issued by him for discharge of any legal liability. He
would further submit that the burden of prove lies with the
appellant which he utterly failed to discharge as no material was
placed on record to substantiate that cheque was towards debt
or liability by the accused. 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 not interfered in the findings, therefore, would
pray for dismissal of the appeal.
8. I have heard learned counsel for the parties and perused the
record.
9. Considering the entire evidence and materials on record which clearly
demonstrate 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 his favour 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 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 accordingly
it is dismissed.
10. No order as to costs.
Sd-
(Narendra Kumar Vyas)
Judge
Deshmukh
