Krishna Prasad Kunwar Vs Shravan Yadav

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2025:CGHC:21006

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Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.05.08 15:01:58 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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NAFR

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CRMP No. 1364 of 2025

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Krishna Prasad Kunwar S/o Late Vishwanath Aged About 50 Years R/o Northern Ring Road, Kedarpur, P.S. - Gandhinagar, Tehsil - Ambikapur, Distt. - Surguja (C.G.), (Complainant)

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... Petitioner.

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versus

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Shravan Yadav S/o Ram Prasad Yadav R/o Behind Saraswati Mandir School, (New Shravan Flowers), Sattipara, Ambikapur, P.S. And Tahsil - Ambikapur, Distt. - Surguja (C.G.), (Accused)

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... Respondent.

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For Petitioner : Mr. A. N. Pandey, Adv through V.C. For Respondent : None.

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SB : Hon'ble Shri Justice Deepak Kumar Tiwari

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Order on Board

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07.05.2025

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Heard on I.A. No.01/2025 - An application for condonation of delay.

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Considering the reasons assigned in the application and short period of delay of 3 days, the application is allowed and the delay is condoned.

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The appellant has filed this Petition under Section 419(4) of the BNSS, 2023 for grant of special leave to Appeal against the judgment of acquittal dated 01.02.2025 passed by the Judicial Magistrate First Class, Ambikapur, District Surguja in Criminal Complaint Case No.768/2021, whereby, the respondent/accused has been acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short, “ the NI Act ”).

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The complainant has filed the complaint case under Section 138 of the NI Act against the respondent (accused therein) stating that he is a Government teacher and posted in District Surajpur. As per complaint, the complainant and respondent are acquainted with each other. The respondent is doing business of flowers and in order to expand his business he has taken a loan of Rs.4 Lacs from the complainant, for which, an agreement (Ex.P-1) was also executed between them on 17.11.2020. In the said agreement, the accused acknowledged to return the amount of Rs.2 Lacs before 22.11.2020 and promised the return the balance amount within further period of 2 months. However, the accused avoided to return the amount. When the complainant demanded for the said amount, on 07.12.2020 the accused has given cheque of Rs.3,50,000/- (Ex.P-2) to the complainant. When the said cheque was presented for encashment, the same got dishonoured due to insufficiency of funds which was communicated by the Bank vide Ex.P/3. Thereafter, a legal notice was sent vide Ex.P/4, however,

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despite receiving the same, payment was not made, therefore, a complaint was filed.

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In order to prove its case, the complainant examined himself and exhibited 6 documents. The respondent/accused abjured his guilt and claimed to be tried. In the statement recorded under Section 313 Cr.P.C. he has taken a defence that the complainant runs a partnership business of flower with him and in the said business he has given some blank cheques as a security which was misused by the complainant.

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The trial Court, after evaluating the evidence, acquitted the respondent/accused. Hence, this leave to appeal has been preferred.

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Learned counsel for the appellant 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 NI Act.

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I have heard learned counsel for the petitioner 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

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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 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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10.Further, in the matter of V.N. Ratheesh vs. State of Kerala [(2006)

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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

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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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In the matter of Rajesh Jain vs. Ajay Singh , reported in [ (2023) 10 SCC 148] , the law relating to the effect of legal presumption as per Section 118 and Section 139 of the NI Act has been clarified. As per Section 118 of the NI Act it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration and as per Section 139 of the Act “unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. Both the presumptions are rebuttable in nature.

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12.In the present case, it is an admitted fact that the complainant is a Government teacher. He has admitted that he has given loan to the accused as well as several other persons, however, the complainant failed to explain the source of money from which he has given loan to the accused. When any person provides loan to multiple individuals, it generally indicates that he is engaged in business of money lending. It is also settled law that the conduct of the

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Government servant in relation to the money lending is against the Government Rules. Further, the complainant has stated that he has given friendly loan to the accused, however, considering the nature of deed of transaction of loan executed between the complainant and accused and also considering the plea taken by the accused that both were involved in business of flower and as a security he has given blank cheque to the complainant which was misused, the whole transaction appears to be dubious in nature. Apart from this, the complainant has also not provided any document showing the dates on which he has given loan to the accused and also not shown the said loan in his Income Tax return though he is filing the Income Tax return.

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13.Considering the aforesaid facts and in light of the aforesaid principles, this Court is of the view that the appellant failed establish a case for grant of leave to appeal and that the findings arrived at by the trial Court in the judgment of acquittal is based on proper appreciation of evidence on record and the view taken by the trial Court is a possible one.

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14.In the result, the application for grant of leave to appeal is rejected.

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Sd/-

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(Deepak Kumar Tiwari)

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ajay

Krishna Prasad Kunwar v. Shravan Yadav

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Krishna Prasad Kunwar v. Shravan Yadav

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