CAV Judgment

1. This present acquittal appeal is preferred under Section 378 (4) of the Code of Criminal Procedure, against the judgment dated 6/04/2013 passed by the Sixth Additional Sessions Judge, Durg, District Durg, Chhattisgarh in criminal appeal number 153/2012 "Ramesh Kumar Mishra vs Sunil Sahu", in which, the appeal of accused Ramesh Kumar Mishra was accepted and he was acquitted, whereby the said appeal was against the judgment dated 19/06/2012 passed by the Judicial Magistrate First Class, Durg, District Durg, Chhattisgarh in Criminal Case No. 454/2012 "Sunil Sahu Vs. Ramesh Kumar Mishra", in which, the trial court has convicted the accused-Ramesh Kumar Mishra under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo three months of rigorous imprisonment.

2. Brief facts of the case is that both the parties are familiar with each other. Complainant/appellant Sunil Sahu had given a loan of Rs 1,05,000/- (one lakh five thousand rupees) to the accused Ramesh Kumar Mishra on 01/05/2009 for personal need and for partial repayment of that amount which accused Ramesh Kumar Mishra had given a check (Ex.P-1) of Rs 55,000/- (fifty-five thousand rupees) on 30/08/2009 in favor of Sunil Sahu and to receive the check amount, the complainant Sunil Sahu deposited the said check in his account of HDFC Bank branch located at Station Road, Durg under deposit slip (Ex.P-2) on 08/09/2009, then it was deposited on 09/09/2009. It was informed through the bank's memorandum (Ex.P-3) and (Ex.P-4) that the check amount could not be paid due to lack of sufficient funds in the account of accused Ramesh Kumar Mishra. Thereafter, the complainant Sunil Sahu, through his advocate, sent the legal notice of (Ex.P.- 7) dated 03/10/2009 to the accused Ramesh Kumar Mishra and demanded the check amount within 15 days. The registry receipt of sending the notice is (ExP-5) and the acknowledgment letter of receipt of notice to the accused is (Ex.P-6). Despite receiving the notice, the accused did not pay the check amount within the stipulated time of 15 days, on which the complainant Sunil Sahu filed a complaint in the court on 31/10/2009.

3. When accused Ramesh Kumar Mishra denied the charge in the trial court, complainant Sunil Sahu got himself examined and documents from Ex.P-1 to Ex.P-7 were proved. In the statement under Section 313 of the Cr.P.C., accused Ramesh Kumar Mishra has admitted that he had an old acquaintance with the complainant Sunil Sahu and the check in question was given to the complainant Sunil Sahu by him which was dishonoured. Complainant Sunil Sahu had given him legal notice. There is his signature on the check but he has denied the loan and liability and has said that there was a deal of buying and selling of land between him, the complainant and in exchange for the money of a client, he gave the check in question to the complainant Sunil Sahu for the security amount. Thus, the accused/Ramesh Kumar Mishra denying his responsibility and he got himself examined in his defence. Manish Chandrakar (DW-2) and Kumar Shiv Prakash (DW-3) have been examined. According to which, Kumar Shiv Prakash had purchased the land from accused Ramesh Kumar Mishra, but the lay-out was not approved, therefore, some money was hold. The money was demanded by the complainant Sunil Sahu, so on behalf of Kumar Shiv Prakash, the accused Ramesh Kumar Mishra gave the check in question to the complainant as a security. After hearing the parties, the accused Ramesh Kumar Mishra was convicted by finding the complaint of the appellant/complainant Sunil Sahu by the trial court.

4. The accused-Ramesh Kumar Mishra against the said conviction and sentence, preferred the criminal appeal i.e. CRA No.153/2012, in which, it has been determined by the Appellate Court that the complainant Sunil Sahu has failed to prove the fact that the check under questioned was provided for the payment of the check loan. Therefore, after accepting the appeal and acq