CAV Order

1. With the consent of the learned counsel for the respective parties, the matter was heard finally.

2. The present application for leave to appeal under Section

378(4) of the Code of Criminal Procedure has been preferred by the appellant being aggrieved by the impugned judgment of acquittal dated 05.03.2019 (Annexure A/1) passed in Criminal Appeal No. 254/2018 passed by the learned First Additional Session Judge, Durg arising out of the judgment of conviction dated 29.08.2018 passed in Complaint case no. 27986/2013 passed by the learned Judicial Magistrate, First Class, Durg, District-Durg(C.G.)

3. The case in nutshell is such that, before the trial Court, on behalf of the appellant (herein) Chakresh Jain complaint case was filed under Section 138 of the Negotiable Instrument Act to the effect that on the basis of their old acquaintance the accused, in need of money demanded Rs. 2,00,000/- from the complainant, on which the complainant gave Rs. 2,00,000/- to the Respondent(herein) as loan on 06.10.2012 which the respondent promised to return in six months. The respondent gave a cheque no. 575103 of UCO Bank, Bhilai to the appellant on 28.06.2013 for payment of the amount within a stipulated time period. Which when deposited in the respondent’s account, was dishonored due to the account being closed, which was informed to the respondent by the bank management. On 30.07.2013 the appellant through his lawyer sent a legal notice of dishonour of the cheque to the address of the respondent, which the respondent accepted but did not pay the amount of the cheque to the appellant. Therefore, aggrieved by the said act of the respondent, the appellant filed a complaint case under Section 138 of the Negotiable Instruments Act, requesting that an appropriate penalty be imposed on the respondent and the amount mentioned in the cheque be returned to him.

4. Learned counsel for the appellant submits that the learned trial court has recorded the evidence and after appreciating the material evidence on record held guilt of the accused/respondent by proving the charges under Section 138 of the NI Act and the said finding has been reversed by the learned appellate court on some technical ground contrary of the provision of law. That the accused has admitted the transaction and said cheque has been dishonored which is proved by the petitioner through the evidence of PW-01 therefore, the presumption can be very well drawn against the accused.

5. He further contended that the appellant has clearly proved that the cheque was issued and dishonored due to account closed and merely signing the cheque knowing that the account is closed itself an offence under Section 138 of Negotiable instrument Act. That the learned appellate court had completely overlooked the material available of record and only on the presumption that the cheque was given to only for security not for any liability, passed the impugned order of acquittal which cannot be legally sustainable. Hence, prays for allowing the instant application. To substantiate his findings, he relied upon the judgment passed by the Supreme Court in the matter of Sripati Singh(single deceased) through his son Gaurav Singh Vs. the State of Jharkhand and Anr.

6. On the other hand learned counsel for the respondent opposes the prayer made by the learned counsel for the appellant and submits that the decision rendered by the Appellate court in favor of the respondent is totally legal and justified . There needs no interference. Hence, the present appeal deserves to be and may be dismissed.

7. I have heard learned counsel for the respective parties at length and perused the record with utmost circumspection.

8. Learned Appellate court while acquitting the appellant(herein) observed that if we examined the cheque in Ex.C-1 the signature of the accused in the said cheque is in ink, besides, the details of the account no. are also written in ink, whereas the name of the holder Chakresh Jain, the amount of Rs.