Shankar Prasad Tiwari Vs Ramnarayan Tiwari

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2025:CGHC:1227

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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ACQA No. 25 of 2014

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Shankar Prasad Tiwari S/o Late Shri Baldau Prasad Tiwari, aged about 42 years, R/o Tifra, PS- Civil Line P.O. Tifra Tahsil & District- Bilaspur, C.G. Pin 495223.

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---- Appellant

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Versus

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Ramnarayan Tiwari S/o Late Shri Ramsay Tiwari, aged about 42 years, Property Broker, R/o House No. 64, Behind Rajendra Shukla’s House Yadunandan Nagar, Tifra PS- Civil Line P.O. Tifra Tahsil & District- Bilaspur, C.G. Pin 495223.

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--- Respondent

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For Appellant : Mr. Vaibhav A. Goverdhan along with Mr. Ravindra Sharma, Advocate. For Respondent : Mr. Sunil Verma, Advocate.

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Hon'ble Smt. Justice Rajani Dubey

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Judgment on Board

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08.01.2025

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This present acquittal appeal has been filed by the appellant/ complainant under Section 378 (4) of the Code of Criminal Procedure, 1973 challenging the judgment dated 19.10.2012 passed by Fourth Additional Sessions Judge to the Court of First Additional Sessions Judge, Bilaspur (C.G.) in Criminal Appeal No. 164/2012, whereby reversing the judgment dated 06.06.2012 of Judicial Magistrate First Class in Complaint Case No. 110/2011, by which the respondent/

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accused was convicted under Section 138 of Negotiable Instruments Act, 1881, where he is sentenced to suffer S.I. for 1 year and to pay compensation of Rs. 1,15,000/- under Section 357 (3) of Cr. P.C. to the complainant. The appeal has been allowed and the accused/ respondent is acquitted of the said charge.

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Brief facts of the case as adumbrated is that appellant/complainant and the respondent/accused are neighbours. Respondent/accused is a property Broker/Dealer and to meet his financial needs in business, respondent/accused had taken Rs. 1,15,000/- (Rupees One Lakh Fifteen Thousand only) as debt from the appellant/complainant, thereafter the respondent/accused gave Cheque No. 140809 dated 06.02.2011 of C.G. Gramin Bank to the appellant/complainant. Appellant/complainant presented the said cheque for encashment in his bank account on 05.03.2011, where he was apprised that Cheque No. 140809 was dishonoured due to insufficient funds in his bank account on 07.03.2011. Thereafter, Appellant/complainant sent a legal notice dated 11.03.2011 through his advocate and the same was received by the respondent/accused on 14.03.2011. Despite receiving the notice, the respondent/accused did not pay the cheque amount within the stipulated time of 15 days, as such, a complaint under Section 138 of Negotiable Instruments Act, 1881 was instituted on 06.04.2011, before the Court of Judicial Magistrate (JMFC), Bilaspur. On appreciation of the evidence on record and after hearing the parties, the respondent/accused- Ramnarayan Tiwari was convicted under Section 138 of Negotiable Instruments Act, 1881 and sentenced as mentioned above by judgment dated 06.06.2012 passed in Complaint Case No. 110/2011 by the Trial Court.

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Against the judgment dated 06.06.2012, the respondent/accused preferred an appeal i.e., Criminal Appeal No. 164/2012 before the First Additional Judge, Bilaspur and by the said impugned judgment, the said appeal was allowed. Hence, this acquittal appeal by the appellant/complainant.

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From the record also, the above error is apparent.

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Learned counsel for the appellant/complainant submits that the learned Trial Court rightly convicted and sentenced the respondent/accused for the alleged offence, but the learned Appellate Court did not appreciate the oral and documentary evidence properly and gave perverse findings. Learned Appellate Court grossly erred in believing the defence witnesses without there being any documentary proof that the respondent/accused repaid the debt, learned Trial Court minutely appreciated oral and documentary evidence and rightly convicted and sentenced the respondent/accused. It is further argued by learned counsel for the appellant/complainant that the learned Appellate Court ignored the fact that had the respondent/accused repaid the debt, he ought to have replied to the legal notice sent by the appellant/complainant, learned Appellate Court ignored the fact that there is no dispute with regard to the issuance of cheque and the amount of money involved. The respondent/accused had admitted the taking of debt and issuance of the cheque and it is clear that respondent/accused admitted his signature in cheque. Thus, findings recorded by learned Trial Court are according to provisions prescribed under Section 138 of Negotiable Instruments Act, 1881, so, impugned judgment passed by learned Appellate Court may be liable to be set aside and judgment passed by learned Trial Court may be liable to be

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restored. In support of his submission, reliance has been placed on the decision of Hon’ble Apex Court in the matter of Rajesh Jain vs. Ajay Singh , reported in AIR 2023 SC 5018.

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Per contra , learned counsel for the respondent/accused supporting the impugned judgment passed by learned Appellate Court submits that the learned Appellate Court after considering all grounds of appeal, rightly set aside the impugned judgment passed by learned Trial Court, so this appeal being devoid of merit, is liable to be dismissed.

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I have heard learned counsel for the parties and perused the material available on record including the impugned judgments.

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It is clear from record of learned Trial Court that appellant/complainant filed a complaint case against the respondent/accused before the Judicial Magistrate- First Class, Bilaspur for dishonouring of Cheque No. 140809 dated 06.02.2011 of Rs. 1,15,000/-(Rupees One Lakh Fifteen Thousand Only), learned Trial Court after minute appreciation of oral and documentary evidence convicted and sentenced the respondent/ accused for offence under Section 138 of Negotiable Instruments Act, 1881 vide impugned judgment dated 06.06.2012. Thereafter, the respondent/accused filed an appeal against the said impugned judgment before the Appellate Court. After appreciating the oral and documentary evidence and hearing both the parties, learned Appellate Court vide impugned judgment dated 19.10.2012 allowed the appeal and acquitted the respondent/accused of the said charge levelled against him and set aside the impugned judgment passed by learned Trial Court.

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It is clear from record of learned Trial Court that respondent/accused admitted his signature on cheque and also admitted this fact that he

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gave cheque to the appellant/complainant, but defence of respondent/accused is that he paid whole debt amount and the appellant/complainant filed this complaint on false and frivolous grounds. Respondent/accused examined two witnesses in his favour i.e., Mahesh Jagamalani (DW-1) & Santosh Kumar Kashyap (DW-2).

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Mahesh Jagamalani (DW-1) stated that in his examination-in-chief that for repayment of debt, respondent/accused gave his household things, borewell work was done in the appellant/complainant’s plot and also dumped materials in his plot.

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Santosh Kumar Kashyap (DW-2) has also stated in his examination-inchief that for repayment of debt, respondent/accused gave his household things i.e., Furniture, weaving machine, Fridge etc and also done borewell work in the appellant/complainant’s plot.

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Learned Appellate Court appreciated this fact and allowed the appeal of respondent/accused, but it is clear that respondent/accused neither filed any document to support his defence and nor filed any single document which shows that any borewell was done in the appellant/ complainant’s plot.

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The Hon’ble Apex Court observed in the case of Rajesh Jain (supra) in para 53, which reads as under:-

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“ 53. In his 313 statements, he admits of having taken a loan of Rs 20 lakh and having repaid some interest but in the cross examination of the complainant, a suggestion is made that the accused had no financial dealings with the complainant. Whereas in his 313 statement, the accused states that his cheque book and passbook is kept in his sister in law's house, yet, in the cross examination of Gita Sunar, the accused's sister-in-law, no suggestion is made to that effect. In fact, she has plainly denied that any blank cheque was given to her by her brother-in-

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law. We find it highly unnatural to presume that the accused would leave his signed cheque leaves and passbook in his sister-in law's house. Even if he did, there is no reason(s) or motive attributed on part of his sister-in-law, for her to collude along with the complainant.

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The accused has also not explained as to why he has not set up his defense at the earliest point, that is, at the stage of receiving the demand notice, even though he admits having received the demand notice in his 313 statement, yet he makes a suggestion to the complainant in his cross examination that no legal notice had been issued. The theory of 'blank cheque' being misused has been suggested, only to be denied by both, the complainant and Gita Sunar-CW-3. No action has been taken by way of registering a police complaint in order to prosecute the alleged illegal conduct of his blank cheque having been misused by CW-3.”

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In the light of above judgment, in this present case also it is clear that nothing significant has been elicited in the cross-examination of appellant/complainant to raise any suspicion in the case set up by the appellant/complainant and respondent/accused also failed to prove his defence by filing reliable documents.

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From bare perusal of the record, it is quite vivid that learned Trial Court minutely appreciated oral and documentary evidence of both parties, rightly convicted and sentenced the respondent/accused for the said offence levelled against him, but learned Appellate Court was unable to appreciate this fact as there is no legally admissible or clinching evidence as the respondent/accused did not file any documents related to borewell work and he examined only two witnesses in his defence, whereas he did not make his appearance as a witness in witness box. Thus, the findings recorded by learned Appellate Court, being perverse

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are not sustainable and not according to provisions prescribed under Section 138 of the Negotiable Instruments Act, 1881.

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In the result, the appeal is allowed . The impugned judgment of the Appellate Court dated 19.10.2012 is hereby set aside and judgment dated 06.06.2012 of the Trial Court is restored with a modification to the extent that conviction of the respondent/accused for offence under Section 138 of Negotiable Instruments Act, 1881 is affirmed and he is sentenced to pay sum of Rs. 1,15,000/- (Rupees One Lakh Fifteen Thousand Only) as compensation under Section 357(3) of Cr.P.C. to the appellant/ complainant within 06 months from the date of receipt of copy of this judgment. In case of default in payment of fine, he shall undergo simple imprisonment for 02 years.

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Sd/(Rajani Dubey) JUDGE

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Uttej

Shankar Prasad Tiwari v. Ramnarayan Tiwari

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Shankar Prasad Tiwari v. Ramnarayan Tiwari

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