2024:CGHC:35556 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR ACQA No. 277 of 2024 S.S. Trivedi S/o Late Ramatwar Trivedi Aged About 59 Years Residence Of Near Chandi Temple Kasdol District - Baloda Bazar -

Bhatapara C.G.

... Appellant versus Shankar Talreja Director Kailash Electricals And Company, Old Bus Stand Main Road Kasdol District - Baloda Bazar - Bhatapara C.G.

---- Respondent For Appellant : Ms. Ankita Shriwas, Advocate For Respondent : Mr. Rajendra Patel, Advocate Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board

11/09/2024

1. With the consent of learned counsel for the parties, the matter is heard finally.

2. The present acquittal appeal has been preferred under Section

378(4) of the Code of Criminal Appeal, 1973 against the impugned judgment of acquittal dated 03.10.2023 passed by the Court of Judicial Magistrate First Class, Kasdol, District Baloda Bazar (C.G.), in Criminal Case No.76/2021, whereby the respondent/accused has been acquitted from the offence under Section 138 of the Negotiable Instruments Act, holding that the prosecution has failed to prove the charge beyond doubt.

3. The prosecution case in brief is that, the complainant and the accused have a cordial relationship as they are already acquainted. The accused has a business of electrical goods in Kasdol. Whenever, the accused needs money for his said business, he borrows money from the complainant from time to time as per his requirement and once the money is arranged, he pays it back to the complainant. In the same sequence, on 09.12.2019, the accused again borrowed Rs 2,50,000/- from the complainant. By two cheques bearing serial Nos. 466376, 466377 respectively amount of Rs 1,25,000/- and Rs 1,25,000/-, both the cheques were handed over to the complainant by the accused. After mentioning the date, the accused asked the complainant to submit both the cheques in the bank for encashment. As per the instructions of the accused, the complainant submitted the said cheques in the State Bank of India, Kasdol on 18.12.2020, which have been ‘dishonoured as the amount mentioned in both the cheques was not deposited in the accused's account’. After which the complainant sent a registered notice to the accused on 26.12.2020 asking him to pay the amount mentioned in the cheque either directly to the complainant or deposit the said amount in his account in the concerned bank, but even after the accused received the said notice on 29.12.2020, the accused neither deposited the amount mentioned in both the cheques in his account nor paid it directly nor responded to the notice. Due to which, the complainant had to filed the said complaint.

4. In order to prove the charges against the accused, prosecution examined as many as 03 witnesses. Statement of accused was also recorded under Section 313 of CrPC in which he pleaded innocence and false implication. However, no defence witness was examined by the accused.

5. Learned counsel for the appellant contended 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 contended that as per the Sections 20, 87 and 139 of Negotiable Instruments Act, makes it clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability and in the present case, the accused has not disputed the his signature over the questioned cheque. He further contended that inspite of service the notice with regard to insufficient fund, the respondent did not raise any objection, therefore, burden would lie against the respondent to meat out the allegation for which the aforesaid cheque was issued in favour of complainant, it is for the respondent to adduce evidence of such facts and circumstances to rebut the presumption that, such debt does not exists or that, the cheque are not issued against the excess amo