2025:CGHC:16441 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 768 of 2024 Judgment Reserved on : 10.01.2025 Judgment Delivered on : 08.04.2025  Amit Ajmani S/o Late Shri Naresh Ajmani Aged About 38 Years R/o Hind Cycle Stores, Cinema Line, Rajnandgaon, Tahsil And Distt.

Rajnandgaon (C.G.)

... Appellant(s)

versus  Rajesh Soni S/o Late Shri Jankilal Soni Aged About 46 Years R/o Uphar Jwelars, Gandhi Chowk Rajnandgaon, Tahsil And Distt. Rajnandgaon (C.G.) Current Address Block B, (First House Of Gate Side), Sun City, Distt. Rajnandgaon (C.G.) 491441 Mo. 7898828099 ... Respondent(s)

For Appellant(s) : Ms. M. Asha, Advocate For Respondent(s) : Mr. Ravi Bodhani, Advocate appeared through video conferencing and Ms. Neelam Jaiswani, Advocate Hon'ble Shri Justice Narendra Kumar Vyas (CAV Judgment)

1. The appellant has filed the present acquittal appeal under Section

378(4) of the Code of Criminal Procedure, 1973 against the order dated 08.04.2024 (Annexure A/1) passed by the learned Judicial Magistrate First Class Rajnandgaon, District - Rajnandgaon (C.G.) in Criminal Case No. 977/2018 by which the learned Magistrate Digitally signed by MANISH MANISH YADAV YADAV Date:

2025.04.08

19:07:35 +0530 has dismissed the complaint filed under Section 138 of Negotiable Instruments Act, 1881 (in short “N.I. Act, 1881”) and acquitted the accused.

2. Brief facts of the case are that:

a. The complainant is running business in the name of Hind Cycle Stores Rajnandgaon whereas accused/non-applicant is running business of silver and gold in the name of Uphar Jewelers at Gandhi Chowk, Rajnandgaon and they are known to each other and because of family relationship the accused has taken a loan of Rs. 1,00,000/- from the appellant for his business. It is also the case of the complainant that to discharge his debt and liability the accused has given a cheque bearing No. 102483 dated 30.01.2018 drawn at Oriental Bank of Commerce, Branch Rajnandgaon for Rs. 1,00,000/-.

b. The said cheque was deposited in the account maintained by the complainant at Bank of India Branch Rajnandgoan on 31.01.2018. The said cheque was returned on 01.02.2018 with endorsement “account closed” vide memo dated 01.02.2018., thereafter, the appellant had sent a legal notice through his counsel on 19.02.2018 which was refused to receive by the accused on 27.02.2018. As such, the accused neither paid the amount nor replied to the said notice, therefore, he has filed a complaint case under Section 138 of N.I. Act, 1881 against the accused before the learned Judicial Magistrate First Class Rajnandgaon, District - Rajnandgaon (C.G.).

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 has exhibited documents i.e. Cheque bearing no. 10248 dated 30.01.2018 (Exhibit P/1), Cheque Return Memo (Exhibit P/2), Notice dated 19.02.2018 (Exhibit P/3), Track Consignment (Exhibit P/4) and Closed Envelop with Acknowledgment (Exhibit P/5) in support of his complaint. The accused has not examined any witnesses, but he has examined under Section 313 of Cr.P.C. wherein he has stated that he has neither taken any loan, put any signature in the cheque nor he has received any notice.

4. On the basis of evidence and material on record, the learned trial Court has recorded its finding that the complainant has not proved that he has given money to the accused, as such cheque was given towards debt or liability. Accordingly, by 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 learned trial court has committed material irregularities by acquitting the respondent because the non applicant has not only committed the offence under