NAFR HIGH COURT OF CHHATTISGARH, BILASPUR ACQA No. 334 of 2018 Judgmen t reserved on : 01 /03/2024 Judgment delivered on : 12 /06/2024  Lalit Shah S/o Late Radheshyam Shah Aged About 55 Years Shah Investment Company, Raipur, Transport Company Building, Police Station City Kotwali, District Raipur Chhattisgarh, District :

Raipur, Chhattisgarh ---- Appellant Versus  Yogesh Singh Sonwani S/o Shri Homeshwar Chand Sonwani Aged About 32 Years R/o House No. 94, Village Ulba , Post And Police Station Abhanpur, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh ---- Respondent For Appellant : Mr. D.K. Gwalre, Advocate For Respondent : None Hon'ble Smt. Justice Rajani Dubey CAV Judgmen t

1. This acquittal appeal is preferred against the judgment dated

02.07.2018 passed by the Judicial Magistrate First Class, Raipur (C.G.) in Criminal Complaint Case No. 608/2013 whereby the said Court acquitted the respondent of the charges under Section 138 of the Negotiable Instruments Act.

2. Brief facts of the case as mentioned in the appeal are that the appellant is proprietor of a proprietorship firm namely Shah Investment Company and is running business of financing auto mobiles. The respondent/ accused obtained loan of Rs. 3,00,000/- for purchasing a vehicle and in discharge of his liability to repay the loan amount, issued an account payee cheque (Ex.P/1) bearing No. 001616 dated 20.03.2013 drawn on the account maintained by him with Abhanpur Branch of the Axis Bank under his signature for payment of Rs.1,08,840/- in favour of Shah Investment Company. The appellant forwarded the aforesaid cheque for clearance through his bank but due to insufficient funds the cheque got dishonoured and an intimation of the same was received by the appellant through the bank memo dated 21.03.2013 (Ex.P/2). After receiving the bank memo (Ex.P/2), the appellant sent a legal/demand notice (Ex.P/3) to the respondent calling upon him to pay the amount due in the questioned cheque. The said notice was served on 16.04.2013 (Ex.P/4) & Ex.P/5). Since the respondent/accused failed to pay the amount due in the dishonored cheque despite due service of the issued legal/ demand notice, hence, after arising of the cause of action, the appellant initiated prosecution through the criminal complaint against the respondent for the offence under Section 138 of the N.I. Act before the competent Court of jurisdiction.

3. In order to prove his case, the appellant/complainant examined 2 witnesses and exhibited 6 documents. Statement of the accused/respondent was also recorded under Section 313 of Cr.P.C. in which he denied the incriminating circumstances appearing against him and pleaded innocence and false implication in the case.

4. After appreciating the evidence, facts and circumstances of the case, the learned Magistrate vide judgment dated 02.07.2018 acquitted the respondent of the offence charged mentioned as above. Hence, this appeal has been filed by the appellant.

5. Learned counsel for the appellant submits that the impugned judgment is illegal and bad in law. Learned trial Court has erred by acquitting the respondent of the offence charged on a ground which was not available to the respondent in any case. The accused/respondent never challenged about existence of any proprietorship firm but the learned trial Court went on wrong premise that there should have been any evidence with regard to any proprietorship firm. Respondent/accused admitted the cheque and his signature and also the fact that he issued the questioned cheque in favour of shah investment company against the finance made for an Innova vehicle but the learned trial Court did not appreciate the oral and documentary evidence properly. It is well settled principle of law that when the accused admitted his signature on cheque then presumption is always in favour of the complainant and accused did not rebut the said presumption but the learned trial Court wrongly acquitted the respondent of the offence under