The burden of proof lies with the accused in cases of dishonor of cheques under Section 138 of the Negotiable Instruments Act.

Ajay Mohan Goel, J.

By way of this revision petition, the petitioner lays challenge to the judgment passed by the court of learned Additional Chief Judicial Magistrate, Court No. (II), Shimla, H.P., passed in Case No. 2866-3 of 14/3 dated 16.05.2017, vide which while allowing the complaint filed by the present respondent under Section 138 of the Negotiable Instruments Act, 1881 (in short 'the Act'), learned Court below convicted the petitioner for committing an offence punishable under Section 138 of the Act and ordered him to undergo simple imprisonment for two months and also to pay fine in the form of compensation amounting to Rs.3,42,000/-, as also to the judgment passed by the Court of learned Sessions Judge, (Forest) Shimla in Criminal Appeal RBT No. 30-S/10 of 2018/2017 dated 23.05.2018, whereby appeal filed by the petitioner against the order passed by learned trial Court stands dismissed.

2. Brief facts necessary for adjudication of the present are that in lieu of the loan taken by the petitioner from the respondent-bank, accused issued a cheque bearing No. 799651 dated 15.06.2013 for part payment of the said loan for an amount of Rs. 3,32,000/- drawn upon State Bank of India, Anaj Mandi, Shimla, in favour of the complainant bank. When the cheque was presented for encashment, it was returned back unpaid on 15.06.2013 on account of insufficient amount in the account of the accused.

3. Complainant bank issued a legal notice dated 08.07.2013 calling upon the petitioner/accused to make the payment within fifteen days. As the accused failed to do so, respondent complainant initiated proceedings under Section 138 of the Act.

4. Learned Trial Court vide judgment dated 16.05.2017, held the petitioner/accused guilty for having committed offence punishable under Section 138 of the Act. It negated the plea of the petitioner/accused that the debt had become time barred and same could not be revived by the issuance of the cheque by holding that the complainant being a Society registered under H.P. State Cooperative Societies Act, there is no limitation of adjudication of disputes involving such like Societies as per the mandate of Section 49 of the Act.

5. Learned Court also negated the plea of the petitioner that the loan was taken by one Mr. Parveen Kumar and not by him by holding that no such suggestion was put to the witness of the complainant who entered the witness and who had duly stated in the Court that the loan was paid into the account of the accused. Learned Court held that the procedure prescribed in the Act was duly followed by the complainant after dishonoring of the cheque before initiating proceedings under Section 138 of the Act and as the accused had failed to pay the cheque amount within fifteen days after receiving legal notice post dishonoring of the cheque, he was liable to be convicted for the offence punishable under Section 138 of the Act.

6. These findings have been affirmed in appeal by the learned Appellate Court. While dismissing the appeal filed by the petitioner, learned Appellate Court held that the plea of the accused that the cheque in issue was a blank cheque which had been obtained from him by the bank was without merit, as such suggestion put by him stood denied by the witness of the bank. It further held that the onus to prove that the handwriting on the cheque was not of the accused was upon him which he had failed to discharge. It also held that so far as the issue of the debt being time barred was concerned, an agreement was made by the accused with the bank to pay the time barred debt to the complainant-bank, which came into existence only on 15.06.2013. Learned Appellate Court thus confirmed the order passed by the learned Trial Court against the petitioner.

7. Feeling aggrieved, he has filed this revision petition.

8. I have heard learned counsel for the parties and have also gone through the impugned judgments as also record of the case.

9. Both the learned Courts below on the basis