NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 79 of 2023

1 - Kailash Murarka S/o Late Mahavir Prasad Murarka Aged About 50 Years R/o Usha Heights, B-102, Srikant Verma Marg, Vaishali Nagar, Bilaspur, Tahsil Bilaspur, District :

Bilaspur, Chhattisgarh ... Petitioners versus

1 - K. Geet Srijan S/o Shri K.L. Naidu Aged About 21 Years R/o Hemu Nagar, Bilaspur, Tehsil Bilaspur, District : Bilaspur, Chhattisgarh ... Respondents For Petitioners : Mr. Arvind Shrivastava, Advocate For Respondent : Mr. Virendra Verma and Mr. Sumit Verma, Advocates.

Hon'ble Shri Arvind Kumar Verma, Judge Judgment on board

04/07/2024

1. This acquittal appeal under Section 378 (4) of the Code of Criminal Procedure is directed against the judgment of acquittal dated 22/12/2011 passed by the Judicial Magistrate First Class, Bilaspur (C.G.) in Complaint case No. 133/2011, whereby the learned JMFC has acquitted the respondent from the charges framed u/S 138 of the N.I. Act, 1881 against the respondent.

2. Case of the prosecution, in brief, is that there was one partnership deed executed between the respondent and Vikas Murarka for running a Restaurant in the name and style of SHYAMJI FOOD JUNCTION at Link Road, Bilaspur and due to financial requirement Rs.12,00,000/- was taken as a loan from State Bank of India, Sarkanda, Bilaspur in the name of complainant for that residential house of the complainant was mortgaged there. Subsequently, the partnership was ended and on

28.8.2010 and one agreement was executed between Vikas Murarka and respondent and Smt. K.Nammani Naidu for the return of the dues taken for the purpose of the partnership business. As per the agreement dated 28.8.2010, the loan of Rs. 12 lakhs taken from the State Bank of India, Sarkanda, Bilaspur in the name of the Complainant had to be paid by respondent upto January 2011, but due to non-arrangement of the amount for payment, the respondent has taken Rs. 12 lakhs as a loan by cheque No. 0214478 dated 04/01/2011 payable at Central Bank of India, Bilaspur (G.G.) from the complainant and as a gurantee against the loan, the respondent/accused given 6 cheques on different dates i.e. 12/03/2011, 10/03/2011, 08/03/2011, 18/03/2011, 16/03/2011 and 14/03/2011 each of Rs. 2 lakhs payable at Central Bank of India to the Complainant. When the complainant had deposited the above mentioned cheques in his account on 23/03/2011 and the cheques were sent for collection to the respondent's Bank the same were returned by the respondent's Bank with an endorsement of ‘Insufficient Balance”. The complainant sent a legal notice to the respondent, but the same was returned with an endorsement “Adhura Pata” whereas the notice was given in the address given in the agreement dated 28/08/2001. Subsequently, the complainant filed a criminal complaint under Section 138 of the Negotiable Instrument Act, 1881 before the learned Judicial Magistrate First Class, Bilaspur.

3. After due appreciation of evidence and hearing the arguments of both the parties, the complaint filed by the complainant has been dismissed on 22/12/2011. Subsequently, the Complainant filed an appeal by mistake before the Sessions Judge, Bilaspur against order dated 22/12/2011 which was taken back for filing before appropriate forum on 08/02/2012.

Hence, this appeal.

4. Learned counsel for the appellant submits that the JMFC, Bilaspur committed error by believing that the legal notice under the provision of Negotiable Instruments Act was not sent in the correct address of the respondent and due to that there was no knowledge about the dishonour of the cheques to the respondent and there was no occasion for repayment of the cheques amount under Section 138 (C) of the Negotiable Instruments Act. He further submits that the learned JMFC has also committed grave error by dismissing the complaint even after accepting the fact that there was no sufficient amount in the account of respondent/accused. Reliance has been placed on the judgment passed by the Apex Cour