IMPORTANT POINT
The presumption under Section 139 of the Negotiable Instruments Act shifts the burden of proof to the accused once the complainant establishes the cheque was issued for a debt.

JUDGMENT :

1. The petitioner brought a complaint case against the respondent no.1 Sushila Devi bearing Criminal Original Case No.181/1994 under Section 138 of the Negotiable Instruments Act, 1881.

2. The case and claim of petitioner as disclosed in the complaint petition was that the petitioner sold 100 Tins of Oil to respondent no.1 vide bill No.186 dated 18.3.1994. The total cost was Rs.40,600/- @ Rs.406/- per Tin. The respondent no.1 was owner of Sushila & Co. On 23.3.1994 respondent no.1 had issued cheque no.941529 of Rs.40,600/- as payment of cost of Oil. The respondent no.1 had assured that the cheque would be honoured on its presentation. The petitioner presented the cheque with Bank of India, Jodhpur Branch on 23.3.1994. On 25.3.1994 the cheque was returned by the Bank on the ground that funds were insufficient in the account. Thereafter the petitioner send a notice to the respondent no.1 on 06.4.1994 asking for payment of the amount of cheque. On 9.4.1994 respondent no.1 sent a reply to the notice stating therein that she has not purchased any Oil from the petitioner and her signed cheques were misused by her employee Raju Manvani, to whom the respondent no.1 had handed-over signed cheques for the use of the firm.

3. The petitioner examined himself during trial as PW-1 and deposed about what the petitioner had stated in the complaint petition and proved the bounced cheque, which was marked as Exhibit-1. Exhibit-2 was the return of cheque by the bank for insufficient fund. Exhibit-3 was notice dated 06.4.1994 and Exhibit-6 was the reply of respondent no.1 dated 9.4.1994.

The petitioner further examined Raju Manvani as witness no.2, who specifically asserted that he had not issued the dishonoured cheque to the petitioner nor he had misused the cheque in collusion with the petitioner.

The respondent no.1 did not appear in the witness-box, however, in her statement under Section 313 Cr.P.C., she admitted her signature on the cheque and asserted that it was filled by Raju Manvani. PW-2 Raju Manvani has admitted that he had filled the cheque at the instructions of respondent no.1. Raju Manvani denied that he was employee of Sushila & Co., and he asserted that he was Proprietor of his own firm.

4. On behalf of respondent no.1 Mr. Shyam Lal, the husband of respondent no.1 was examined as DW-1. He has deposed that he was looking after the business of Sushila & Co., and under an agreement had appointed Raju as Commission Agent and he was given custody of signed cheques and other documents of the firm, which he misused. In the year 1994 there was a dispute with Raju Manvani for accounts of Sushila & Co., which led to surface of misuse of cheque by Raju Manvani. In cross-examination DW-1 admitted that the cheques of Sushila & Co., which were handed-over to Raju Manvani was voluntarily handed-over under an impression that Raju Manvani would work on behalf of the firm. However, this witness expressed ignorance about supplied Oil to Sushila and firm or from which it had purchased the Oil tins. The witness is specific that he had not seen accounts of Sushila & Co., of the year 1993 and he has no knowledge that Sushila & Co., had purchased oil from the petitioner’s firm M/s. Vandana Industries, Jodhpur. Thus, this witness who claims to be looking after affairs of the firm on behalf of his wife Sushila appears to be unaware of deal with the petitioner. The witness has not deposed that he was sure that no deal with the petitioner regarding purchase of Oil tin was ever made.

5. On the basis of material aforesaid, the learned trial Judge convicted respondent no.1 and imposed only fine of Rs.25,000/-, out of which, Rs.20,000/- was payable to the petitioner as compensation.

6. The convict respondent no.1 challenged the conviction in Criminal Appeal No.73/1999 before the learned Sessions Judge. The petitioner challenged legality of the sentence in Criminal Revision No.24/1999. Both the matters were jointly heard and by the impugned judgment dated 27