Point of Law: Dishonoured of cheque - Preponderance of probabilities - Trial Court has disbelieved evidence brought by applicant side and held that presumption that is available under Section 139 of Act, 1881, has not been rebutted. Appellate Court has also held similarly that defence has failed to bring evidence to dispute complaint case. This Court also held that defence appears to be unconnected with transaction which was the basis of filing complaint by respondent side.

ORDER :

1. This criminal revision petition has been brought being aggrieved by the judgment dated 6.10.2015 passed in Criminal Appeal No. 114 of 2013 by the Learned Additional Sessions Judge (F.T.C.) Dhamtari, District Dhamtari, upholding the judgment of conviction against the applicant under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act, 1881’) however, the sentence imposed was modified.

2. Respondent-Rejnald Peter had filed a complaint against the applicant under Section 138 of the Act, 1881, on the basis that the applicant had borrowed Rs. 1,00,000/- from the respondent and for repayment of the same he had given a cheque of the same amount on 21.11.2009. The cheque was presented for payment by the respondent in his account in the Oriental Bank of Commerce, Branch Dhamtari on 2.12.2009, which was dishonoured. The respondent sent notice on 11.12.2009 to the applicant, which was received, but the applicant did not make any payment of the amount of cheque. Subsequent to which, the complaint was filed.

3. The applicant made plea of denial to the substance of accusation against him. Learned trial Court completed the trial and the judgment was passed on 28.11.2013, by which the applicant was convicted under Section 138 of the Negotiable Instruments Act, 1881 and sentenced with rigorous imprisonment for six months alongwith fine of Rs. 5,000/-. The applicant preferred an appeal, which has been disposed off by the impugned judgment in which the conviction against the applicant has been maintained, however, the sentence imposed by the trial Court has been modified, the jail sentence was set aside and the applicant was ordered to pay compensation of Rs. 1,25,000/- under Section 357(3) of the Cr.P.C. with a condition that on non-payment of the compensation, the applicant shall be required to undergo simple imprisonment for three months.

4. It is submitted by counsel for the applicant that the impugned judgment is erroneous, illegal and contrary to the facts and circumstances of the case. The applicant had borrowed an amount of Rs. 50,000/- only from the respondent and he repaid the loan amount in full. The applicant had provided a blank cheque to the respondent as security for the loan amount. The applicant has proved the said facts in the trial by bringing proper evidence. Learned trial Court and the Appellate Court both have failed to appreciate the same.

5. Reliance has been placed on the judgment of Supreme Court in the case of M.D. Thomas vs. P.S. Jaleel and Another, (2009) 14 SCC 398, in that case the notice of demand was not effectively served upon the accused, therefore, he was acquitted. Reliance has also been placed on the judgment of Supreme Court in the case of Basalingappa vs. Mudibasappa, (2019) 5 SCC 418, in which it has been held that it is the burden of the prosecution to prove its case beyond reasonable doubt, however, the accused has to prove his case only to the extent of the preponderance of probabilities. Hence, it is prayed that this petition be allowed and the impugned judgment of conviction against the applicant be set aside.

6. Learned counsel appearing for the respondent opposes the submissions so made and submits, that no error has been committed by the trial Court and the Appellate Court in convicting the applicant for offence under Section 138 of the Act, 1881. Although, the applicant had set up this defence that the cheque was given in security of the loan but the same was not proved by him, therefore, the impugned judgment is sustainable, which needs no interference. Hence, the revision petition be dismissed.

7. Considered on the submissions. In the scrutiny to find out the legality, propriety and correctness of the impugned judgment, the only thing which is required to be examined in this revision petition, is whether the applicant had brought evidence on the point of his defence, which can be regarded as sufficient in the standard of preponderance of probabilities. There appears to b