Chattisgarh High Court

Teekaram Patel vs Hitesh Patel on 8 May, 2025

Author: Narendra Kumar Vyas

Bench: Narendra Kumar Vyas

                                                             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 : 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

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

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

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

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

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

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

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.

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