ORDER :

1. Since common question of law is involved in both of these cases, they are heard together and are being disposed of by this common order.

2. The petitioner/complainant filed a complaint against the respondent/accused under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter, “the NI Act”) stating inter alia that in discharge of his liability towards the petitioner/complainant, on 04/11/2008, the respondent/accused issued a cheque bearing No. 728602 of the Durg Rajnandgaon Gramin Bank Branch Kawardha for Rs. 1,50,000/-. The petitioner/complainant presented the said cheque to his Bank on the next day i.e. 05/11/2008 and it was dishonoured and was returned to him on the same day. Thereafter, the petitioner/complainant issued a notice to the respondent/accused on 10/11/2008 by registered post which was served to him on 21/11/2008. The respondent/accused still did not pay the amount in dispute which led to the filing of the complaint by the petitioner/complainant before the jurisdictional criminal Court.

3. The respondent/accused abjured his guilt and entered into defence and examined himself as defence witness stating inter alia that he had signed a blank cheque with relation to an earlier transaction regarding the repair work of his tractor and it has been misused by the petitioner/complainant and even the particulars of the cheque were not filled by him.

4. Learned trial Court, after evaluation of oral and documentary evidence on record, convicted the respondent/accused vide order dated 05/11/2011 for offence punishable under Section 138 of the NI Act and sentenced him to imprisonment for one year and simultaneously also imposed a fine of Rs. 5,000/- upon him and also prescribed a default sentence in case the fine is not deposited by him.

5. Feeling aggrieved by the order of conviction passed by the trial Court and the sentence imposed therein, the respondent/accused preferred an appeal before the Court of Sessions. The petitioner/complainant also preferred a revision against the order of the trial Court for enhancement of the sentence as well as fine imposed upon the respondent/accused.

6. Eventually, learned Additional Sessions Judge allowed the appeal of the respondent/accused vide impugned order dated 10/07/2012 and set aside the order of conviction passed by the trial Court and also dismissed the revision of the petitioner/complainant.

7. The instant petition as well as the acquittal appeal, both have been filed by the petitioner/complainant against the order of the Sessions Court acquitting the respondent/accused and dismissing the revision for enhancement of sentence as well as fine imposed by the trial Court upon the respondent/accused.

8. Mr. Awadh Tripathi, learned counsel appearing for the petitioner/complainant, would submit that learned Additional Session Judge is absolutely unjustified in holding that the petitioner/complainant has failed to prove that the cheque in question was issued by the respondent/accused in discharge of his debt or liability, as there is a presumption under Section 139 of the NI Act though it is a rebuttable presumption and the burden of proof lies upon the drawer of the cheque by adducing rebuttal evidence to prove that he did not issue the cheque towards any antecedent liability. He would further submit that the respondent/accused having admitted his signature on the blank cheque cannot disown his liability by asserting that the cheque has been misused and he has not filled the particulars of the cheque, as such, the impugned order passed the Additional Sessions Judge reversing the order of conviction of the respondent/accused for offence punishable under Section 138 of the NI Act passed by the trial Court deserves to be set aside and the order dismissing the revision petition also deserves to be set aside.

9. Mr. Vikas Pandey, learned counsel appearing for the respondent/accused, would support the impugned order passed by learned Additional Sessions Judge by which he has acq