NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 1055 of 2015 Ramesh Nishad S/o Late Vishal Nishad Aged About 45 Years R/o Village, Post and Tahsil Gunderdehi, District Durg, Chhattisgarh. Presently R/o Village Katiya, P.O. Arjunda, Tah. Dondilohara, Distt.

Durg, Chhattisgarh.

---- Petitioner Versus Smt. Radha Bai W/o Late Shri Ramdas Bharti Aged About 60 Years R/o Village Dhangaon, Post Chourel, Tahsil Gunderdehi, P.S.

Arjunda, Distt. Durg, Chhattisgarh.

---- Respondent (Cause title has taken from Case Information System)

For Petitioner Mr. Arun Kochar, Advocate.

For Respondent Mr. Avinash Chand Sahu, Advocate.

Hon'ble Mr. Ramesh Sinha, Chief Justice

Order on Board

19/03/2024

1. The petitioner has sought special leave to appeal under Section 378 (4) of the CrPC, 1973 against the impugned judgment of conviction and order of sentence dated 21.09.2015 passed by the learned Judicial Magistrate 1^st Class, Durg, Chhattisgarh in Complaint Case No. 623 of 2011, acquitting the respondent from charges under Section

138 read with Section 142 of Negotiable Instrument Act.

2. Brief facts necessary for disposal of this petition are that according to the complainant the son of accused Suresh Bharti entered into an agreement with complainant on 30.06.2008 to sale agricultural land, Khasra No. 105, Village Dhangaon, District Balod. Suresh after receiving Rs. 9,35,000/- was not ready and willing to make registry of the disputed land. Then, after optioning revenue records of the land, complainant found that, the agreed land was not recorded in the name of accused. That both the witness No.1 Shivdyal Deshmukh and Ghanshyam Singh Chandrakar played fraud with complaint that, the accused on 06.03.2010 gave a cheque No. 489940 of Rs. 3,50,000/- of SBI to complainant. The cheque was presented on 17.05.2010 by implement in his account in Zila Sahakari Kendriya Bank Maryadit at Durg, same was dishonored on 10.08.2010, with an endorsement, as insufficient balance. The complainant gave registered legal notice through advocate. Even after lapse of 15 days, from receipt of notice the cheque amount was not paid, then the complainant filed complaint case.

3. The complaint has been registered against the respondent and he has been prosecuted for the offence committed under Section 138 read with Section 142 of Negotiable Instrument Act, in the complaint Case No. 623/2011 before the learned JMFC, Durg and learned Court has acquitted the respondent from the charges of Section 138 read with Section 142 of Negotiable Instrument Act. Hence, this petition seeking special leave to appeal.

4. Learned counsel for the petitioner submits that the learned trial Court has grossly erred in acquitting the accused/ respondent from the charge under Section 138 read with Section 142 of Negotiable Instrument Act. He further submits that the learned Judge ignored the material available on record which is sufficient for guilt of the respondent because witnesses categorically stated that despite of notice under the Act, the accused did not returned the cheque amount of Rs. 3,50,000/- of cheque No. 489940. He also submits that the learned trial Court has failed to consider that the prosecution has duly proved their case and presumption under Section 3 of the Evidence Act is in favour of the complainant and looking to the evidence of witnesses and other witnesses which clearly establish the Section 138 read with Section 142 of Negotiable Instrument Act also failed to appreciate that no such objection was ever taken by the respondent before the trial Court and trial Court acted with the material irregularities and summarily dismissed the evidence of the witnesses and the other witnesses which clearly indicates the order of acquittal for worse and bad in eye of law and the judgment of the acquittal deserves to be set-aside.

5. Per contra, learned counsel for the respondent would support the impugned order and submits that the trial Court has rightly acquitted the respondent from the charges under