The main legal point established in the judgment is that the presumption under Section 139 of the NI Act would arise when the signatures on the cheques had been admitted, and the burden to rebut the presumption lay with the accused. The evidence presented by the complainant was deemed sufficient to establish the loans advanced and their sources, and the defense raised by the petitioner was not enough to rebut the presumption.

JUDGMENT

Swarana Kanta Sharma, J. The instant revision petition under Section 397 of the Code of Criminal Procedure, 1973 (hereinafter `Cr.P.C.'), has been filed on behalf of the petitioner seeking setting aside of judgment dated 26.05.2018 passed by the learned Additional Sessions Judge-02, Central, Tis Hazari Courts, Delhi (hereinafter `learned ASJ') whereby the Criminal Appeal No. 544844/2016 filed by the petitioner was dismissed.

2. In the present case, the petitioner vide judgment dated 23.03.2015 was convicted for offence under Section 138 of Negotiable Instruments Act, 1881 (hereinafter `NI Act') by the learned Metropolitan Magistrate (NI Act)-1,Central, Tis Hazari Courts, Delhi (hereinafter `learned MM') in CC No. 2799/2010 titled "Chetna Verma vs. Devender Damle". Further, vide order on sentence dated 25.03.2015, the petitioner was sentenced to undergo simple imprisonment of three months and to pay a combined fine of Rs.40 lakhs, out of which Rs.39 lakhs was to be paid as compensation to the complainant and remaining Rs.1 lakh as fine, and in default of payment of same, to undergo further simple imprisonment for three months.

3. Briefly stated, the case of complainant was that she and the petitioner were known to each other for more than nine years and there were friendly relations between their families for more than twenty two years as on the date of filing of the complaint. It was alleged that in July 2006, the accused/petitioner had approached the complainant on pretext that he was going through a tough time financially and he had come up with a lucrative business proposal for the complainant and had convinced her to finance a project which would yield handsome profits to her, for which he had sought a loan of Rs.14 lakhs from her. The complainant had accordingly agreed to advance a loan of Rs.14 lakhs to the petitioner on payment of interest at the rate of 3% per month. It was stated by the complainant that the petitioner was regular in paying interest on loan amount and he had again approached her in the month of August, 2007 for another loan and the complainant after considering his past conduct, had agreed to advance the second loan amount to him by selling of her jewellery, thereby giving another loan of Rs.14 lakhs to the petitioner on same rate of interest. It was averred that to liquidate the liability of Rs.28 lakhs, the petitioner had issued three cheques bearing number 549169, 549166 and 551750, all drawn on Bank of Maharashtra, Karol Bagh branch, New Delhi, duly signed by the petitioner. It was averred that the petitioner had asked the complainant to fill the details of the cheques and withdraw the money in case he failed to pay the interest. The complainant had stated that initially, the petitioner had paid interest in cash regularly, but after November 2007, he had started defaulting in the payment of interest and in July 2008, the complainant had asked the petitioner to repay the loan amount. Thereafter, as alleged, the petitioner had given an undertaking to repay the loan amount within a year and that in case of his failure to do so, the complainant could encash the cheques in question. Thereafter, since the petitioner had failed to repay the loan amount, the complainant had presented the cheques i.e. cheque no. 549166 for Rs.10 lakhs, cheque no. 551750 for Rs.15 lakhs and cheque no. 549169 for Rs.3 lakhs, for encashment, however, the same had returned unpaid with remarks "funds insufficient". It was stated that the complainant had again presented two of the cheques for encashment but they had again got dishonoured for the reasons "funds insufficient".Thereafter, the complainant had issued the statutory legal notice to the petitioner demanding repayment of the loan amount and upon his failure to do so, she had filed the present complaint case before the learned MM.

4. During the course of trial, the complainant got herself examined as CW-1 and the evidence of complainant taken on affidavit at pre