Bodh Singh Thakur Vs Suresh Kumar Dubey

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2025:CGHC:6911

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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ACQA No. 610 of 2024

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1 - Bodh Singh Thakur S/o Late Aniruddh Singh Thakur Aged About 53 Years R/o Purani Basti, Korba, Police Station, Tahsil And District Korba (C.G.) ... Appellant

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versus

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1 - Suresh Kumar Dubey S/o Shri Durga Prasad Dubey R/o Village Nunera, Police Station And Tahsil - Pali, District Korba (C.G.)

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... Respondent

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For Appellant : Mr. Anil Tripathi, Advocate For Respondent : Mr. Vikas Kumar Pandey, Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

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06.02.2025

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The appellant/complainant has filed present acquittal appeal under Section 378(4) of the Criminal Procedure Code against the order dated 10.11.2022 passed by the Judicial Magistrate First Class, Korba, District Korba (C.G.) in Criminal Complaint Case No. 4226 of 2018 by which the complaint filed by the appellant/complainant under Section 138 of the Negotiable Instruments Act has been dismissed.

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The brief facts reflected from the record are that the appellant/complainant has filed complaint on 21.08.2018 before learned Judicial Magistrate First Class, Korba alleging that the

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Digitally signed by BHUMIKA BHUMIKA ANGARE ANGARE Date: 2025.02.21 10:40:41 +0530

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appellant is indulged in sub-dealership of Hero at Deepka and there was cordial relationship between the appellant and the respondent accordingly he has given Rs. 4,00,000/- as credit on April 2018 and on assurance that he will return the same within one month but he has not returned the amount. Therefore, when he demanded to return the amount he gave a cheque bearing No. 339740 dated 20.07.2018 payable at State Bank of India, Branch Pali, District Korba (C.G.). On 20.07.2018 when the appellant deposited the same in the account maintained by him in the Bank of Barauda, Branch Korba in account No. 24810100005321 the same was bounced and returned to the appellant with an endorsement “due to insufficient funds” on 21.07.2018.

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The complainant has sent a legal notice through his counsel on 24.07.2018 which has been received by the respondent on 26.07.2018 which was neither replied nor submission has been made to make good the default which has compelled to file a complaint under Section 138 of N.I. Act before learned Judicial Magistrate First Class Korba. Learned trial Court taking cognizance of the complaint issued notice to the respondent and framed charges against the accused on 15.10.2019. Thereafter, the complainant has recorded his statement on 22.02.2020 under Section 145 of N. I. Act by way of an affidavit in his examination-in-chief has reiterated the same fact. The applicant to substantiate his case has exhibited the copy of the cheque bearing No. 339740 (Ex. P/1), legal notice (Ex. P/2), postal receipt of notice (Ex. P/3), net copy of acknowledgment of notice (Ex. P/4). The witness was also cross examined by the accused, but nothing was brought on

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record to rebut the same. The accused has not examined any witness before learned Judicial Magistrate First Class but he was examined under Section 313 of Cr.P.C. where he has taken plea of false implication. Learned trial Court after hearing the parties vide impugned order dated 10.11.2022 has dismissed the complaint by recording finding that neither certified copy of cheque return memo nor any Bank Officer has been examined to prove dishonor of cheque. The complainant is unable to prove essential ingredients of Section 138 of the N.I. Act. Accordingly it has dismissed the same. Being aggrieved with this order the appellant has preferred this Acquittal Appeal.

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Learned counsel for the appellant would submit that learned trial Court has adopted hyper technical view once the cheque has been bounced it is required for the accused to pay the cheque amount as the complainant has already proved that cheque was given to discharge the debt or liability by the accused. He would further submit that learned trial Court should have drawn presumption in favour of the complainant but has committed illegality in drawing presumption in favour of the accused on account of non-examination of the Bank Officer, as no signature or seal of the bank were mentioned in the cheque forwarding memo, thus he would pray for allowing the appeal.

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Per contra learned counsel for the respondent would submit that learned trial Court has not committed any illegality in dismissing the complaint and would pray for dismissal of the appeal.

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I have heard learned counsel for the parties and perused the records.

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From perusal of the record and the impugned order, it is quite vivid that learned trial Court has dismissed the complaint on the count that since

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there is no document placed on record regarding depositing of the cheque in the bank, thereafter, there is no intimation regarding bouncing of the cheque, therefore, the complainant has not proved the presumption under Section 138 of N.I. Act and accordingly it has rejected the same.

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The record of the case clearly demonstrate that the complainant has submitted Cheque (Exhibit P/1), Notice dated 24.07.2018 alongwith its postal receipt (Exhibit P/2) and acknowledgment of the receipt of notice and also submitted cheque return memo which was not exhibited during the trial. The accused was examined before the trial Court under Section 313 of Cr.P.C. wherein he has denied the allegations and plead not guilty and false implication. The accused has also denied that any of his cheque has been bounced or any notice has been received by him. The complainant has also submitted memo issued by the Bank of Baroda alongwith list of documents, but it has not exhibited the same the reason best known to him. The complainant in his complaint has also mentioned about issuance of memo dated 21.07.2018 issued by the Bank of Baroda regarding intimation towards dishonor of cheque. Thus, there was sufficient material already on record of the case regarding intimation of the dishonor of the cheque and deposition of the cheque in the bank. Since there are sufficient material on record regarding depositing of the cheque and bouncing of the cheque which inadvertently has not been exhibited during the trial, therefore, this Court deem proper to remand the matter for fresh adjudication of the case.

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Accordingly, the matter is remitted back to the trial Court for fresh

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adjudication of the complaint wherein the complainant and the accused will be granted sufficient opportunity to prove their stand. Accordingly, the impugned order passed by the learned Judicial Magistrate First Class is set aside and the matter is remitted back to the trial Court and the complaint is restored to its original number.

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Since, the parties have already entered appearance before this Court, therefore, it is directed that the appellant and respondent shall appear before learned trial Court on 25^th March, 2025 and no notice is required for appearance of the parties as the parties have already appeared before this Court. Learned trial Court is directed to make an endeavour to decide the complaint within an outer limit of 1 year from the date of first appearance of the parties i.e. 25^th March, 2025 as the matter is pending since 2018.

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With aforesaid direction, the instant acquittal appeal is allowed in part.

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Sd/-

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(Narendra Kumar Vyas) Judge

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Bhumika

Bodh Singh Thakur v. Suresh Kumar Dubey

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Bodh Singh Thakur v. Suresh Kumar Dubey

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