IMPORTANT POINT
The presumption of liability under Section 139 of the Negotiable Instruments Act places the burden on the accused to prove otherwise, supporting conviction for dishonor of cheque.

ORDER :

Parth Prateem Sahu, J.

1. Applicant has filed this revision invoking the provisions under Section 397 read-with Section 401 of CrPC challenging the judgment of conviction and sentence passed in Criminal Appeal No. 13/2015 by learned Additional Judge of 1st Additional Sessions Judge, Rajnandgaon, whereby the learned Appellate Court affirming the conviction passed by learned trial court, modified the sentence awarded and instead of 6 months’ RI and compensation of Rs.2.50 Lakh has sentenced her to 3 months’ SI and compensation of Rs 2.50 Lakh and in default of payment of compensation ordered to 01 month’s additional SI.

2. Facts relevant for disposal of this revision are that the non-applicant filed an application under Section 138 of the Negotiable Instruments Act, 1881 (for short “Act of 1881”) pleading therein that the non-applicant/ complainant and the applicant-accused and her husband were known to each other for long time. Applicant obtained hand loan from nonapplicant/ complainant of Rs.02 Lakhs with an assurance that she would return it back within three months. When the hand loan was not returned back to non-applicant, he visited the house of applicant-accused demanding back the money which he extended as hand loan. The applicant-accused handed over the non-applicant a cheque bearing No. 882836 dated 11.06.2010 towards returning back the hand loan. The said cheque was deposited by the non-applicant in his State Bank account which was returned back with a note that the balance is not sufficient. After returning of the cheque, non-applicant issued a legal notice demanding the cheque amount, however the cheque amount was not repaid by the applicant-accused and an application was filed before the trial court. Applicant produced the report of handwriting expert Dr.Sunanda Dhenge and examined her as DW-1 and Ashok Khare, husband of applicant, as DW-2, statement of applicant was also recorded under Section 313 of CrPC in which she stated that she has been falsely implicated, she is innocent. Learned Magistrate upon appreciation of the documentary and oral evidence placed on record by the respective parties had allowed the complaint holding the applicant guilty for commission of offence under Section 138 of the Act of 1881 convicted her to undergo six months’ RI and also imposed compensation to be paid to the tune of Rs. 2.50 Lakh under Section 357 of CrPC, in default of payment of compensation has imposed to undergo two months’ SI. The order passed by the Magistrate was put to challenge in an appeal and the learned appellate court upon appreciation of evidence and submission of learned counsel for the respective parties had upheld the judgment of conviction passed by the trial court, however, modified the sentence as mentioned above in preceding paragraph. Aggrieved with the judgment passed by the appellate court, applicant has filed this revision.

3. Learned counsel for the applicant would submit that the learned courts below erred in convicting the applicant for commission of offence under Section 138 of the Act of 1881. Non-applicant/ complainant failed to prove the fact of handing over the huge amount of Rs.2 Lakh to the applicant by admissible piece of evidence. There is no mention of date, time and place of handing over the amount of Rs.2 Lakh in the complaint/ application. Non-applicant has not examined any supporting witnesses to prove the pleading made in the complaint of extending the hand loan to the applicant. Without proving the fact of handing over the amount of 2 Lakh as hand loan by admissible piece of evidence, the conviction of Rs.applicant under Section 138 of the Act of 1881 would not sustain. There are contradictions and omissions in the evidence of complainant/ non-applicant. Learned trial court as also the appellate court failed to appreciate the evidence of handwriting expert in appropriate manner wherein the expert witness has stated that the age of the contents of the cheque and the age of signatu