Dismissed

Anurag Agrawal v. Sourabh Mishra

Chhattisgarh HC4 Jan 2024ACQA/129/2014

Case brief

AI extract

What is this about?

This High Court of Chhattisgarh allowed an acquittal appeal filed by a cheque dishonor complainant against a Judicial Magistrate's order. The court held that the trial court's finding of acquittal was a possible view given the lack of proof regarding the correct notice address, absence of written transaction agreement, and admitted landlord-tenant dispute background.

What did the court decide?

The acquittal appeal was dismissed, leaving the acquittal of the respondent intact.

Anurag Agrawal Vs Sourabh Mishra — Cheque Dishonour | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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ACQA No. 129 of 2014

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Anurag Agrawal S/o Shri M.P. Agrawal Aged About 33 Years R/o Baniyapara, Purani Basti, Tah. And Distt. - Raipur C.G. , Chhattisgarh

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--- Appellant.

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Versus

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Sourabh Mishra S/o Shri Narendra Dev Mishra Aged About 24 Years R/o Tatyapara Raipur, Tah. And Distt. Raipur C.G. , Chhattisgarh

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--- Respondent.

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Ms. Pooja Loniya, Advocate as Amicus curiae For Appellant : None. For Respondent : None.

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SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari, J. Judgment On Board

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05/01/2024

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The present acquittal appeal has been preferred by the complainant against the judgment dated 30.07.2012 passed by the Judicial Magistrate First Class, Raipur in Criminal Complaint No.221/2011, whereby, the respondent has been acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short the “ NIA Act ”).

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Prosecution case, in short, is that on 16.03.2010 the appellant/complainant has fled a complaint case under Section 138 of the NIA Act to the efect that the respondent has borrowed money from him to the tune of Rs.25,000/- and for returning the same, the respondent gave him a cheque of Rs.25,000/- on 05.09.2009 (Ex.P-1). When the complainant deposited the said

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cheque before the concerned Bank on 27.01.2010, the said cheque got dishonoured by the Bank on 30.01.2010 and returned with a note “insufcient fund” vide receipt Ex.P-3. Thereafter, the complainant sent the legal notice (Ex.P-4) to the respondent on 03.02.2010 through Registered AD Post (Ex.P-5). However, even after receipt of such notice, the respondent did not return the money to the complainant. Hence, the applicant preferred the aforesaid complaint before the Court below.

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The complainant in order to prove its case examined himself as PW1. On the other hand, the respondent/accused denied the charge levelled against him and in his statement recorded under Section 313 of the Cr.P.C., he stated that he has been falsely implicated in the case. The respondent has also stated that there was a landlordtenant dispute between his father and the complainant. He has also taken a defence that though he took the money but he had already returned the same and to avoid the litigation, he is ready to pay the said amount, but the complainant is not ready to accept the same ill intentionally. Learned trial Court after evaluating the evidence, acquitted the respondent by the judgment impugned. Being aggrieved by the said acquittal, this appeal has been fled.

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Learned amicus curiae submits that in the memo of appeal, it is stated that the trial Court has not appreciated the evidence in its proper perspective. She would submit that though a notice has been issued through the registered post, however, from the evidence of the complainant, it appears that the respondent was willing to return the cheque amount. She also submits that there

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was landlord-tenant dispute between the parties and the document (Ex.D-1) has also been fled by the respondent to show that a similar amount of Rs.25,000/- was paid by the respondent as an advance money as rent to the father of the appellant.

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With the help of leanred Amicus I have gone through the material available on record.

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Learned trial Court in the judgment impugned observed that in the notice (Ex.P-4), which was sent to the respondent and in the postal receipt (Ex.P-5), only the locality address i.e. Tatyapara, Raipur was mentioned though in the summons issued in the present case, a diferent address i.e. Tatyapara, Mishra Bada, Raipur has been mentioned. Therefore, in the notice, proper address of the respondent was not mentioned. Learned trial Court on such premises observed that Section 27 of the General Clauses Act presumption not attracts in favour of the complainant. Further, in the cross-examination, at paragraph 15, the complainant himself has stated that he is not aware that whether the notice was received by the accused or not. It is also an admitted fact that no postal track record has been produced by the appellant. Further, the complainant in the cross-examination admitted that his father has given a shop to the respondent in rent and there was a landlordtenant dispute with regard to the said premises. He also admitted that the complainant has fled a civil suit against the father of the respondent. The said civil suit has been registered as Civil Suit No.79-A/2010 before Fourth Civil Judge Class-II, Raipur for permanent injunction of the shop, which was taken on rent by the

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complainant, however, the said civil suit was dismissed vide judgment dated 30.07.2011 (Ex.D-1). Moreover, at paragraph 3 of the judgment (Ex.D-1), it is mentioned that an advance money to the tune of Rs.25,000/- was deposited by the complainant and this pleading has been taken by the complainant himself.

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In such backdrop, it appears that there was a landlord tenant dispute between the parties and further, in the cross-examination, the complainant categorically admitted that the respondent is always willing and ready to refund the cheque amount. Though the respondent has taken a defence that he has already refunded the amount but to avoid litigation, he is ready to pay the said amount however, the complainant admitted in his deposition that he is not ready to accept the said amount as the said amount was given after fling of the case.

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Considering the evidence, this Court of the opinion that frstly the the complainant has not adduced any evidence to prove the notice was issued on the correct address and further, in respect of liability and advance money by the respondent, no written agreement has been executed between the parties. Therefore, the evidence of transaction between the complainant and respondent is not clearly established and after evaluating such evidence, learned trial Court has acquitted the respondent.

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Even otherwise, in the matter of Jafarudheen Vs. State of Kerala, (2022) 8 SCC 440 , in respect of scope of appeal against acquittal, the following was observed vide para 25 :

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“25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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In view of the aforesaid settled principles and considering the facts and circumstances of the case, this Court is of the opinion that the fnding arrived at by the trial Court is a possible one.

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The acquittal appeal is, therefore, liable to be and is hereby

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dismissed .

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sd/-

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(Deepak Kumar Tiwari) Judge

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Ajay

Anurag Agrawal v. Sourabh Mishra

Case brief

What is this about?

What did the court decide?

Anurag Agrawal v. Sourabh Mishra

Case brief

What is this about?

What did the court decide?

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