IMPORTANT POINT
[The presumption of consideration under Section 139 of the Negotiable Instruments Act is a significant legal principle, placing the burden on the accused to prove otherwise, which was not met in this case.]

ORAL JUDGMENT

1. Heard learned advocate for the applicant and learned advocate for the non-applicant. Perused the record and proceedings.

2. In this revision, the challenge is to the judgment and order dated 04.12.2021 passed in Criminal Appeal No.256 of 2018 by the learned Additional Sessions Judge-4, Nagpur, whereby the appeal filed by the applicant against his conviction and sentence for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'NI Act') came to be dismissed. The learned Judicial Magistrate First Class, Nagpur vide judgment and order dated 20.08.2018, has convicted the applicant for the offence punishable under Section 138 of the NI Act and awarded him substantive sentence till rising of the Court and to pay compensation of Rs. 5,50,000/- and in default of the payament of compensation to undergo simple imprisonment for five months. In this order, the parties would be referred by the nomenclature in the complaint.

3. The complainant was doing the business in the name and styled as 'Anq Enterprises' and dealing in the manufacturing of packaged drinking water and pet bottles. It is stated that the accused was introduced by one Sanjay Pathak to him in connection with the starting of the business of pet bottles. The accused wanted to buy a moulding machine for starting the business. The complainant had one spare blow moulding machine. He agreed to sell the said machine for Rs. 5 lakhs to the accused on a condition that the machine would be installed in the premises of the accused at the cost of the complainant and period of one month would be the trial period the machine. The accused issued post-dated cheque dated 01.12.2014 bearing Cheque No.022052 for Rs. 2 lakhs and another cheque bearing No.022051 dated 03.12.2014 for Rs. 3 lakhs. Both cheques were drawn on the accounts of the accused maintained with Union Bank of India, Wadi Branch, Nagpur. The complainant presented the cheques for encashment. The cheques dishonoured on account of insufficiency of funds to honour the cheques vide cheque return memo dated 21.01.2015. The complainant, thereafter, issued a statutory notice on 05.02.2015 and called upon the accused to make the payment of the cheque amount within 15 days. The accused received the notice on 07.02.2015 but he failed to make the payment. He, therefore, filed the complaint.

4. The complainant examined himself and adduced the evidence of three more witnesses. The accused has examined two witnesses. On consideration of the evidence, the learned Magistrate found that the offence punishable under Section 138 of the NI Act is proved. As such, the learned Magistrate convicted and sentenced the accused as above. The appeal filed against the judgment of the learned Magistrate came to be dismissed. The accused is before this Court in revision.

5. I have heard the learned advocate for the accused and learned advocate for the complainant. Perused the record and proceedings.

6. The gist of the submissions advanced by learned advocate for the accused is as follows:

There is no evidence to prove that, as per the agreement, the machine was delivered and installed at the premises of the accused. There was no cause of action for the initiation of the proceedings. The complainant was not entitled to present the cheques for encashment during the trial period of one month, after the installation of the machine. The basic ingredients of Section 138 of the NI Act have not been established. In Section 313 of the Code of Criminal Procedure (Cr.P.C.) statement of the accused, no specific question was asked to the accused so as to enable him to offer his explanation with regard to the installation of the machine in terms of the agreement. This has resulted in a grave prejudice. The condition precedent namely the one-month trial period after installation of the machine has not been established and therefore the complaint, which was filed without cause of action is liable to be dismissed.

7. The gist of the sub