NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CrMP No. 729 of 2023 • Ashok Airan S/o Chhedilal Agrawal, at present Aged About 53 Years Occupation-Business, Proprietor Laxmi Finance Company, Kharsia, R/o Kharsia, P. S. Kharsia, District Raigarh Chhattisgarh.

---- Petitioner Versus • Smt. Yashodabai Rathore W/o Raghuraj Singh Rathore at present Aged About 50 Years Proprietor Vandana Auto Chhal, R/o Village and Post Ghaghra, P. S. Kharsia, District Raigarh Chhattisgarh.

---- Respondent For Petitioner : Mr. F.S. Khare, Advocate Hon'ble Shri Justice Arvind Kumar Verma

Order on Board

19/07/2024

1. Heard on I.A. No.01/2023, application for condonation of delay in filing the instant CrMP.

2. On due consideration and for the reasons stated in the application, the same is allowed. Delay of 10 days in filing the CrMP is condoned.

3. Also heard on application for grant of special leave to appeal under Section 378(4) of the Code of Criminal Procedure, 1973.

4. Learned counsel for the petitioner has sought special leave to appeal against the impugned judgment of acquittal dated 15.12.2022 (Annexure- A/1) passed in CIS No.08/2018 by the Court of Judicial Magistrate First Class, Kharsia, District Raigarh (C.G.), whereby the respondent/accused has been acquitted from the offence punishable under Section 138 of the Negotialb Instruments Act, 1881 holding that the complaint filed by the complainant is under Section 138 of the Negotiable Instructments Act which has not been presented as per the provisions of the Act and is not in circulation.

5. Case of prosecuction in brief is that the accused runs a two-wheeler business named Vandana Auto Chaal. There was acquaintance between the accused and the complainant as their residence was near Subhash Chowk Kharsia. When the accused required money to run the business, Rs. 30,00,000/- (rupees thirty lakh) was received from the complainant by keeping the documents of the sold vehicle of Lakshmi Finance Company, Kharsia till 21.10.2016. After 3 months, when the amount given by the complainant was demanded, the accused kept evasive. On 21.10.2016, an agreement was executed by the son of the accused and her husband, out of which the Central Bank of India, Branch Kharsia. Cheque No.005414 was signed and provided to the complainant. On 10.01.2018, when the complainant again demanded the said amount, the accused issued check no. 005414 was provided for payment, which was deposited by the complainant in his bank account on 23.01.2018. When presented in the bank for clearing, the said check was dishonored due to ‘insufficient funds’. Information about which was sent by the complainant through his advocate to the accused through registered post on 27.01.2018 for payment of the amount related to the cheque. Despite not having sufficient amount in the account of the accused, the accused fraudulently issued the said check to the complainant with the intention of deceiving him and thus cheated the complainant by not paying the amount of the check to the complainant even after information due to which he is aggrieved. The complainant filed a complaint against the accused under Section 138 of the Negotiable Instruments Act, 1881 before the jurisdictional Court.

6. Learned counsel for the petitioner submits that the judgment/order of acquittal passed by the learned trial Judge is illegal, improper and incorrect and is liable to be set aside. He further submits that the learned trial Court has failed to propertly perused the documents produced by the appellant in the case particularly the statement of account maintained by the Central Bank of India, Branch Kharsia, the balance sheet as on 31.03.2018 submitted by complainant in whch the accused firm Vandana Auto Agencies Chhal has been shown as debtors of Rs.71,70,000/- of appellant firm M/s. Laxmi Finance Company. He further submits that the learned trial Judge has committed error of law in not believing the testimony of the prosecution witnesses and the learned trial Court has acqui