The main legal point established in the judgment is the successful proof of the essential elements of Section 138 of the Negotiable Instruments Act by the complainant, leading to the conviction of the accused.

Sandeep Sharma, J.

Present Criminal Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure against the judgment dated 5.4.2008, passed by learned Additional Sessions Judge, Sirmaur, District Nahan, in Criminal Appeal No. 7-N/10 of 2004, affirming the judgment dated 6.9.2004 passed by learned Sub Divisional Magistrate, Rajgarh in criminal Complaint No. 49/3 of 2002, whereby the present petitioner has been convicted under Section 138 of the Negotiable Instruments Act and has been sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 3000/- and in default of payment of fine to undergo simple imprisonment for three months.

2. Briefly stated facts of the case are that the complainant( hereinafter referred to as “respondent”) filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ”Act’) against the petitioner ( hereinafter referred to as “accused”) specifically averring therein that the accused borrowed a sum of Rs.80,000/- from him on loan basis in the month of August, 2000 with a promise to return the said amount within a period of two years along with 12% interest per annum i.e. up to August, 2002. However, there is no document on record that the aforesaid arrangement was ever reduced into writing by the parties to the lis. Despite several requests accused failed to pay/return the money, as agreed upon by him. On 2.8.2002, accused issued a cheque bearing No.177423 amounting to Rs.80,000/- in favour of the complainant drawn at UCO Bank Rajgarh. Accordingly, complainant presented the said cheque for collection before UCO Bank, Rajgarh on 4.10.2002 and the same was returned to the complainant by the aforesaid bank with the endorsement of “insufficient funds”. The complainant immediately on receipt of the memo Ex.CW1/B issued by the bank sent a registered notice to the accused on 10.10.2002, which appears to be received by the accused. However, despite service of the notice upon the accused, he did not bother to make the payment to the complainant and, as such, was compelled to file a complaint under Section 138 of the Act in the appropriate Court of law.

3. The Court of learned Sub Divisional Magistrate, Rajgarh on the basis of the material available on record issued summons to accused vide order dated 7.1.2003 with the direction to the accused to put in appearance, the notice of accusation was put to the accused, as envisaged under Section 138 of the Act, to which accused pleaded not guilty and claimed trial.

4. Complainant with a view to prove its case examined two witnesses, whereas statement of accused under Section 313 Cr.P.C was also recorded, whereby he denied the allegations of the complainant with regard to taking of loan from him and issuance of cheque in his favour, however, tool the defence that he had issued cheque in question in favour of one Rajesh Sharma, R/O Village Pabiana and the cheque was blank at that time. Though, time was taken by the accused to lead evidence but record reveals that no evidence has been led by him in his defence, rather record suggests that after closure of the defence evidence accused, obtained order from the Court of learned Additional Sessions Judge, Sirmaur, whereby one opportunity of leading evidence in defence was afforded to him. But fact remains that no evidence was led on record by the accused.

5. Learned trial Court after appreciating the evidence available on record held the accused guilty under Section 138 of the Act and vide impugned judgment dated 6.9.2004 convicted and sentenced the accused, as per the description given hereinabove.

6. Feeling aggrieved and dissatisfied with the impugned Judgment passed by learned trial Court, present petitioner filed an appeal under Section 374 of the Code of Criminal Procedure against the impugned judgment dated 6.9.2004, passed by the learned trial Court. However, the Court of learned Additional Sessions Judge, Sirmaur after app