2025:CGHC:14558 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 372 of 2019

1 - Dinesh Namdeo S/o Late Ramsevak Namdeo Aged About 38 Years R/o Ward No. 07, Pithora, Police Station And Tahsil- Pithora, District-

Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh ... Appellant versus

1 - Jitendra Ogare S/o Shri Lokprakash Ogare Aged About 38 Years R/o Baya Road, Lahraud, Police Station And Tahsil- Pithora, District- Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh ... Respondent For Appellant : Mr. Ayush Lall, Advocate appears on behalf of Mr.

Surfaraj Khan, Advocate For Respondent : Mr. Shikhar Sharma, Advocate Hon'ble Shri Justice Narendra Kumar Vyas

Order on Board

26.03.2025

1. The appellant/complainant has filed present acquittal appeal under Section 378(4) of the Criminal Procedure Code by which learned Judicial Magistrate First Class, Pithora, District Mahasamund (C.G.) in Criminal Complaint Case No. 225 of 2018 has dismissed the complaint filed by the appellant and acquitted the respondent/accused for commission of offence under Section 138 of the Negotiable Instrument Act, 1881 (in short “the N.I. Act, 1881”).

BHUMIKA ANGARE BHUMIKA ANGARE Date: 2025.04.15

2. The brief facts reflected from the record are that due to cordial relationship between the appellant and the respondent the appellant/complainant has given Rs. 2,15,000/- as lent and to repay the same the accused has given cheque bearing No. 000009 dated 05.03.2018 drawn in the bank account maintained by him at H.D.F.C. Bank, Branch Basna wherein the said cheque was returned with an endorsement “dishonored due to insufficient fund”. The same was communicated to the appellant vide memo dated 20.06.2018 but was received on 24.06.2018. The complainant has sent a legal notice on 10.07.2018 to accused demanding amount of cheque which was returned to him with an endorsement that the respondent has gone somewhere else. The accused has not paid the amount of cheque to the complainant which has necessitated the complainant to file an application under Section 138 of the the N.I. Act, 1881.

3. The complainant to substantiate his claim has exhibited documents namely dishonored cheque (Ex. P/1), forwarding memo (Ex. P/2), deposit slip (Ex. P/3), envelope in which memo was given by the Bank (Ex. P/4), registered notice dated 10.07.2018 (Ex. P/5), postal receipt (Ex. P/6), notice which was sent through registered post which has been returned (Ex. P/7). The appellant to substantiate his case was examined by way of an affidavit under Section 145 of the N.I. Act. The witness in the cross examination in paragraph 10 has denied that he has given notice beyond statutory period and he has stated that the information with regard to the dishonor of cheque was given at a belated stage, thus he has also denied that on 25.05.2018 he has received information with regard to dishonour of the cheque. He has voluntarily stated that the same was received after two or three days of 25.05.2018. He has also admitted that his counsel has sent a legal notice on 10.07.2018 to the accused. The accused has not examined himself but he was examined under Section 313 of Cr.P.C. wherein he stated that he is innocent and has been falsely implicated.

4. Learned trial Court vide impugned judgment dated 27.03.2019 has dismissed the complaint by recording his finding at paragraph 10 that the statutory notice under Section 138 of the N. I. Act is required to be given within 30 days which has been given after 30 days and the notice was served on 10.07.2018 which is beyond the time period. The learned trial Court has dismissed the complaint on the count also that the complainant has not complied with the ingredients of Section 138 of the N.I. Act, 1881 and has recorded its finding in paragraph 13 that since cheque forwarding memo does not bear seal and signature of bank Officer therefore, it cannot be said that the cheque was dishonored, accordingly, it has also recorded its finding that the com