The court emphasized the presumption under Section 139 of the N.I. Act and the burden on the accused to prove the absence of a legally enforceable debt.

JUDGMENT :

1. Criminal Revision Application No.13 of 2018 is preferred by the original complainant and Criminal Revision Application No.177 of 2021 is preferred by the original accused. Both these revisions are preferred against the order of the learned Additional Sessions Judge, Shrirampur, District Ahmednagar, whereby conviction of the accused recorded by the learned Judicial Magistrate First Class (JMFC) has been maintained but substantive sentence is modified.

2. In this order parties are referred to as per their original status in the trial Court.

3. Facts in brief are that on the request of the accused - Aris @ Arish Mohammad Shaikh, complainant - Abhaykumar Bansilal Mutha paid Rs.2,50,000/- to accused as a hand-loan on 28th December 2004. Accused assured that he would repay the amount within two days. Accused gave post-dated cheque dated 31st December 2004 to the complainant. On 31st December 2004, complainant deposited the cheque in the Bank which was dishonoured on account of insufficient funds. On 1st January 2005, notice for demanding the amount was sent by the complainant to the accused. On 3rd January 2005, accused received the notice. However, accused did not pay the amount of Rs.2,50,000/- and therefore, on 16th February 2005 complainant fled a private complaint under Section 138 of the Negotiable Instruments Act (N.I.Act) bearing STC No.127 of 2005.

4. Particulars of offence were read over and explained to the accused. He pleaded not guilty to it and came to be tried. Accused admitted to have issued the cheque but he contended that it was issued on 1st February 2004 and the complainant altered it to 31st December 2004. The cheque was, therefore, barred by limitation as it was issued on 1st February 2004.

5. The learned JMFC, Shrirampur, after recording evidence and after recording statement of the accused under Section 313 of the Code of Criminal Procedure, by his order dated 13th August 2012, recorded conviction under Section 138 of the N.I.Act and sentenced the accused to suffer rigorous imprisonment for three months with fine of Rs.2,60,000/-, in default to suffer rigorous imprisonment for two months. It further directed that Rs.2,50,000/- be paid as compensation to the complainant.

6. Accused preferred Criminal Appeal bearing No.22 of 2012 against this order of the learned JMFC, Shrirampur. The learned Additional Sessions Judge, Shrirampur, maintained conviction and the amount of fine. However, the learned Additional Sessions Judge set aside the substantive sentence on the ground that sentence awarded was simple imprisonment. This order was passed by the learned Additional Sessions Judge on 13 December, 2017. This order is impugned in this revision.

7. Criminal Revision Application No.13 of 2018 is preferred by the complainant. Accused has preferred Criminal Revision Application No.177 of 2021 challenging the order of learned Additional Sessions Judge maintaining conviction. Since both these revisions arise out of the same order of the learned Additional Sessions Judge, they are being disposed of by this common order.

8. Heard Smt.Rashmi S.Kulkarni, learned counsel for the complainant and Shri Avinash Barhate Patil, learned counsel for the accused.

9. Smt.Kulkarni, learned counsel submitted that accused has not denied his signature on the cheque. He has not denied that he did not draw the cheque. His only defence is that date of cheque was 1st February 2004 and it was altered to 31st December 2004. She submitted that report of the Handwriting Expert was called but Handwriting Expert was not examined. Therefore, the report carries no value. She submitted that both the Courts have held that there was legally enforceable debt and therefore, cheque was issued in discharge of legally enforceable debt. She further submitted that learned Additional Sessions Judge committed gross error in setting aside the substantive sentence erroneously presuming that the sentence awarded was simple imprisonment. Infact, if order of the l