Dismissed¶35

Naleen Kumar Kothari v. Smt. Sangeeta Khandelwal

Chhattisgarh HC8 Jan 2025ACQA/682/2024

Case brief

AI extract

What is this about?

Chhattisgarh HC Bilaspur, ACQA No. 682 of 2024, decided 09.01.2025 by Narendra Kumar Vyas, J. Section 138 NI Act acquittal appeal: cheque dated 21.02.2017 for Rs. 1,00,000/- (Dena Bank, Rajnandgaon) drawn by M/s. Gayatri Construction, a non-party firm; promissory notes (including Rs. 50,000/- dated 01.01.2017) written by the firm; PW-1 cross-examination admissions; no proof that respondent-accused managed the firm's day-to-day affairs or was proprietor/director; no patent illegality or perversity in acquittal; A.R. Radha Krishna v. Dasari Deepthi (2019) 15 SCC 550 relied on; appeal dismissed; respondent unrepresented.

What did the court decide?

None; the order of acquittal was upheld and the acquittal appeal was dismissed. ¶35

Naleen Kumar Kothari Vs Smt. Sangeeta Khandelwal — Cheque Dishonour | Chhattisgarh HC (2025)

What the court decided

AI extract

Outcome

None; the order of acquittal was upheld and the acquittal appeal was dismissed.

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Issue for consideration

Whether the trial court's dismissal of the complaint — on the grounds that M/s. Gayatri Construction (drawer of the cheque and writer of the promissory notes) was not arrayed as a party and that no evidence showed the accused was proprietor/director of or responsible for the firm — suffered from illegality or perversity. +1 more

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Court's answer

On perusal of Exhibit P/1 the cheque dated 21.02.2017 was issued by M/s. Gayatri Construction and the promissory notes (Ex.P/7, Ex.P/8) were written by the firm; the firm was not arrayed as a party and there was no material demonstrating that the accused Sangeeta Khandelwal was responsible for the day-to-day affairs of the firm; therefore the trial court committed no illegality in dismissing the complaint.

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Ratio / Principle

The evidence of the complainant himself established that he was unable to prove that the cheque was given for any liability, and therefore the provisions of Section 138 of the Negotiable Instruments Act, 1881 were not attracted.

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Key takeaways

Absent patent illegality or perversity an appellate court should not normally interfere with an order of acquittal; the complainant produced no ignored or unconsidered material and pointed out no patent illegality, so the acquittal was free from illegality and the appeal was dismissed.ratio¶35

Detailed headnote1 paragraphs

Acquittal appeal under Section 378(4) Cr.P.C. by the complainant against dismissal of a Section 138 NI Act complaint (Complaint Case No. 3462/2017, JMFC Rajnandgaon, judgment dated 14.03.2023). On perusal of Exhibit P/1 the cheque dated 21.02.2017 was found to have been issued by M/s. Gayatri Construction, and the promissory notes (Ex.P/7, Ex.P/8) were written by the firm; the firm was never arrayed as a party and there was no material showing the respondent-accused was responsible for the day-to-day affairs of the firm. The complainant's own evidence further showed he could not prove the cheque was given towards any liability attracting Section 138. Relying on A.R. Radha Krishna v. Dasari Deepthi, (2019) 15 SCC 550, and the settled position that an acquittal should not be interfered with absent patent illegality or perversity, the High Court dismissed the appeal.

2025:CGHC:1545

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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ACQA No. 682 of 2024

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Naleen Kumar Kothari S/o Umedchand Kothari Aged About 45 Years R/o Kamthi Line, Infront Of State Bank Of India, Post, Tahsil, P.S. And District - Rajnandgaon (C.G.)

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... Appellant

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versus

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Smt. Sangeeta Khandelwal W/o Ashok Khandelwal Aged About 50 Years Proprietor- Gayatri Construction, R/o Khandelwal Complex, Kamthi Line, Post, Tahsil, P.S. And District Rajnandgaon (C.G.)

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... Respondent

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For Appellant : Mr. Shaleen Singh Baghel, Advocate For Respondent : None

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Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

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09.01.2025

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The appellant has filed the present acquittal appeal under Section 378(4) of the Code of Criminal Procedure, 1973 as the Complaint Case No. 3462/2017 under Section 138 of Negotiable Instruments Act, 1881 has been dismissed by the learned Judicial Magistrate First Class Rajnandgaon, District - Rajnandgaon (C.G.) vide order dated 14.03.2023.

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Brief facts as reflected from the record are that the complainant

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Digitally signed by MANISH MANISH YADAV YADAV Date: 2025.02.12 11:29:31 +0530

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has filed a complaint under Section 138 of Negotiable Instruments Act, 1881 alleging that the accused has given a cheque of Rs. 1,00,000/- on 21.02.2017 for discharge of his liability. The complainant has deposited the same in Dena Bank, Branch Rajnandgaon which was dishonored on the count of “insufficient fund” on 06.03.2017 and the same was communicated to the complainant. The complainant has given notice to the accused, which has neither been replied nor amount has been given to the complainant, which has compelled the appellant to file a complaint case under Section 138 of Negotiable Instruments Act, 1881 against the accused.

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The complainant to substantiate his case has examined himself as PW-1 and also exhibited documents: Cheque No. 051712 dated 21.02.2017 (Exhibit P-1), Cheque Deposit slip of Dena Bank dated 01.03.2017 (Exhibit P-2), Cheque Return Memo of Dena Bank (Exhibit P-3), Copy of the Notice sent to the accused (Exhibit P-4), Postal Receipt of the Notice (Exhibit P-5), Acknowledgment (Exhibit P-6), Promissory Note dated 01.02.2017 issued by the accused (Exhibit P-7) and Promissory Note dated 02.02.2017 issued by the accused (Exhibit P-8). The complainant in his examination by way of affidavit as required under Section 145 of Negotiable Instruments Act, 1881 has reiterated the same stand taken in the complaint. The witness was cross-examined wherein he has admitted that on 01.01.2017 the accused has executed promissory note of Rs. 50,000/-. He has also admitted that he has not produced any document to establish that the accused has

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taken Rs. 1 Lakhs from him. He has also admitted that when he has given amount in cash to the accused no other person was present. He has also admitted that he cannot recollect the date when he has given money to the accused. He has also admitted that in the promissory note there was no signature of the complainant. When he was asked whether is there any requirement of law in the money transaction document signature of both the parties are required, the witness has stated that it is not necessary.

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He has also admitted that the promissory note was written to Gayatri Construction, Kaamthi Line Rajnandgaon and the said Construction Company is not controlled by the accused.

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The accused has not examined the defense statement, but recorded statement under Section 313 of Cr.P.C. wherein he has denied the allegation levelled against him and the learned Judicial Magistrate First Class, Rajnandgaon vide impugned judgment dated 14.03.2023 (Annexure A-1) has dismissed the complaint by recording its finding that the complainant has not arrayed the accused Gayatri Construction as party to the case and no evidence has been brought on record that the accused Sangeeta Khandelwal was proprietor or director of the company and accordingly, it has dismissed the complaint. Being aggrieved with the order of acquittal, the present acquittal appeal has been filed.

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Learned counsel for the appellant would submit that the finding recorded by the trial Court so far as the complainant has not impleaded the Gayatri Construction as party to the case suffers

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from illegality as the complainant has categorically stated in the complaint that the money has been taken by the present accused, therefore, the finding suffers from perversity and illegality and deserves to be set aside. He would further submit that the complainant has proved his case beyond reasonable doubt that the cheque was given in discharge of liability, as such the trial Court has committed illegality in dismissing the complaint and would pray for allowing the acquittal appeal.

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Despite notice, the accused has not chosen to appear before this Court, therefore, the Court is proceeding further in the matter in his absence.

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From bare perusal of the exhibited P/1 cheque dated 21.02.2017, it is quite clear that the cheque issued by Gayatri Construction and the promissory note (Exhibit P/7) and (Exhibit P/8) have been written by Gayatri Construction. Thus, it is quite vivid that the cheque and promissory notes were issued by M/s. Gayatri Construction, but the M/s. Gayatri Construction has not arrayed as party to the case. Even there is no material placed on record by the complainant to demonstrate that the accused Sangeeta Khandelwal was responsible for day to day affairs of the firm, as such the learned trial Court has not committed any illegality in dismissing the complaint. Even otherwise, the law in this regard has been considered by the Hon’ble Supreme Court in case of A.R. Radha Krishna vs. Dasari Deepthi and Others reported in 2019 (15) SCC 550 wherein the Hon’ble Supreme Court in paragraphs 8 and 9 has held as under:

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“8. A perusal of the record in the present case indicates that the appellant has specifically averred in his complaint that Respondent 1 and 2 were actively participating in the dayto-day affairs of Accused 1 company. Further, Accused 2 to 4 (including Respondents 1 and 2 herein) are alleged to be from the same family and running Accused 1 company together. The complaint also specifies that all the accused, in active connivance, mischievously and intentionally issued the cheques in favour of the appellant and later issued instructions to the bank to “stop payment”. No evidence of unimpeachable quality has been brought on record by Respondents 1 and 2 to indicate that allowing the proceedings to continue would be an abuse of process of the Court.

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In the above view of the matter, the instant appeals are allowed and the impugned order dated 22-9-2017, passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Dasari Deepthi v. State of Telangana, is set aside and that of the trial Court is restored.”

¶32

In light of the above stated position, it is quite vivid that the complainant is unable to prove that the accused Sangeeta Khandelwal was responsible for day to day affairs of the firm and even the firm has not been arrayed as party to the case, therefore, I am of the view that the learned trial Court has not committed any illegality in dismissing the complaint and acquitted accused from the charges. The evidence of the complainant itself establishes that the complainant is unable to prove that the cheque was given for any liability to attract the provisions of 138 of the Negotiable Instruments Act, 1881.

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Even otherwise, the law with regard to the interference in acquittal is well settled by the Hon’ble Supreme Court and it has been held that unless and until there is so patent illegality or perversity in the order of acquittal passed by the trial Court, the appellate court should not normally interfere in the order of acquittal. In the

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present case the complainant has not produced any material before the trial Court which has been ignored or not considered by the trial Court and have not pointed out any patent illegality which warrants interference by this Court. Considering the said legal position and also considering the facts, evidence, material on record, I am of the view that the trial Court has not committed any illegality in acquitting the accused. Accordingly, the appeal deserves to be dismissed and it is dismissed.

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Sd/-

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(Narendra Kumar Vyas) Judge

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Manish

Naleen Kumar Kothari v. Smt. Sangeeta Khandelwal

Case brief

What is this about?

What did the court decide?

Naleen Kumar Kothari v. Smt. Sangeeta Khandelwal

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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Cases cited

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