Maulana Waliullah Vs Kyamuddin Hasan Urf Panne Kabadi

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2025:CGHC:20208

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Digitally signed byAVINASH AVINASH SHARMA SHARMA Date:2025.05.05 15:16:41 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 1317 of 2025

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1 - Maulana Waliullah S/o Late Mohammad Salim at present Aged About 65 Years R/o L.I.G.-149, Shivaji Nagar, Korba, District - Korba, Chhattisgarh - 495677, (Complainant).

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... Petitioner.

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versus

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1 - Kyamuddin Hasan Urf Panne Kabadi S/o Late Kallo Aged About 60 Years R/o Behind Central Point Hotel, Near Bhartiya Janata Party Karyalaya, T.P. Nagar, Korba Road, Korba, Tehsil And District - Korba (C.G.), (Accused).

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... Respondent(s)

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For Petitioner : Shri Brajendra Singh, Advocate.

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Hon'ble Shri Justice Deepak Kumar Tiwari

Order On Board

02/05/2025

1. Heard.

2. Petitioner has filed this application under Section 419 (4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 for grant of leave to appeal against the judgment of acquittal dated 14.02.2025 passed by the Judicial Magistrate First Class, Korba (Chhattisgarh) in Regular Criminal Case No.299/2017 whereby, the respondent/accused was acquitted of the charges under Section 138 of the Negotiable Instruments Act, 1881 (henceforth “the Act, 1881”).

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As per the averments made in the complaint, the complainant runs a

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pharmacy near TP Nagar Madarsa, Korba and due to old relations with the respondent, he gave a cash loan of Rs.2,31,000/- without interest on 29.02.2016 and on 24.04.2016, an amount of Rs.1,00,000/-, and in aggregate, a total amount of Rs.3,31,000/-. For repayment of the aforesaid loan, the respondent/accused gave a cheque dated 16.11.2016, however, when the same was presented for encashment, it got dishonoured vide Annexure-P/4 on account of insufÏciency of funds. Thereafter, a legal notice was sent to the respondent vide Annexure-P/5 and despite receiving the same, payment was not made. Hence, a complaint was filed.

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The trial Court, after evaluating the evidence, acquitted the respondent/accused. Hence, this petition for grant of leave to file acquittal appeal has been filed.

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Learned counsel for the petitioner would submit that the trial Court has not appreciated the evidence in its proper perspective though there is a legal presumption under Sections 118 & 139 of the Act, 1881. He prays for grant of leave to file acquittal appeal.

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I have heard learned counsel for the petitioner/complainant and perused the record with utmost circumspection.

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In the matter of Budh Singh vs. State of U.P. [(2006) 9 SCC 731] , the Hon’ble Supreme Court held that in a matter of Appeal against acquittal, the High Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidences on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in

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arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law.

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Further, in the matter of V.N. Ratheesh vs. State of Kerala, (2006) 10 SCC 617, the Hon’ble Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Hon’ble Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is further held that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offence or not. It was also observed that the principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.

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If I examine the facts and circumstances of the case in light of the principles laid down by the Hon’ble Supreme Court in the abovementioned cases, from the statement of complainant, it is revealed that he had given loan to various persons, including one Mohammed Rustam, who was given an amount of Rs.5,00,000/- on 10.10.2014, for which, Criminal Case No.1411/2017 has been filed on account of dishonour of cheque vide Ex.D/1. Similarly, the complainant has given loan of Rs.2,50,000/-to one Ravi Sinha and Rs.4,95,000/- to Ramlakhan Srivastava on 07.12.2019 for domestic purposes. Further, the petitioner has not filed any document to demonstrate that he was having a valid registration to lend money, though he has deposed that he gave loan without any interest only due to personal relations. The Respondent/accused has also challenged complainant’s financial capacity but petitioner has not filed any substantial document for the source of money and further, he has not filed any Income Tax Return acknowledging the aforesaid transaction.

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10.Considering the aforesaid infirmities and taking into consideration the principles laid down in the matter of Rajesh Jain vs. Ajay Singh¹ , this Court is of the view that, the respondent/accused has successfully rebutted the presumption under Sections 118 & 139 of the Act, 1881 and the view taken by the trial Court is a possible one.

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In the result, no case is made out for grant of leave to file acquittal appeal. Resultantly, this Cr.M.P. is dismissed.

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Sd/-

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(Deepak Kumar Tiwari) Judge

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Avinash

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1 (2023) 10 SCC 148

Maulana Waliullah v. Kyamuddin Hasan Urf Panne Kabadi

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Maulana Waliullah v. Kyamuddin Hasan Urf Panne Kabadi

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