The importance of exercising revisional jurisdiction judiciously and the presumption in favor of the holder of a cheque under Section 139 of the Negotiable Instruments Act.

JUDGMENT

Tarlok Singh Chauhan, J. - Cr.Mp(M) No. 1416 of 2018

By medium of this application, the applicant/petitioner has sought condonation of delay of 412 days, which has crept up in filing of the revision petition. For the reasons so assigned and set-out in the application, the same is allowed and the delay in filing of the revision is condoned. Application stands disposed of.

Criminal Revision be registered.

Cr. Revision No. 416 of 2018

2. The petitioner has been convicted and sentenced to undergo simple imprisonment for a period of three months and to pay a sum of Rs.5,50,000/- as compensation to the complainantrespondent for an offence having been committed under Section 138 of the Negotiable Instruments Act(for short the ''Act'') by the learned trial Magistrate on 31.3.2016/01.04.2016., which conviction and sentence was upheld by the learned Sessions Judge, Mandi on 08.09.2017, constraining him to file the present revision petition.

3. Briefly stated the facts of the case are that in the month of August, 2009 the petitioner borrowed Rs.6,00,000/- from the respondent for purchase of Maxi Cab bearing registration No. HP-01A-0345 with a promise to pay every instalment of finance company but the petitioner did not pay regular instalment of the loan till January, 2011. To discharge his legal liability towards the respondent regarding the purchase of Maxi Cab, the petitioner then issued a cheque bearing No.186276 dated 3.2.2011, amounting to Rs.5,00,000/- of H.D.F.C. Bank, Rampur Bushehar, Shimla. On 20.5.2011 the respondent presented the said cheque for encashment through his banker but the same was returned back to the respondent with the reason "CAPS ACCT STAT CLOSE." Thereafter, the respondent issued a legal notice dated 17.6.2011 to the petitioner through registered post through his counsel but the petitioner neither replied nor paid the cheque amount to the respondent. While giving the cheque in question to the respondent, the petitioner was fully aware and in the knowledge that there is no arrangement of funds in his bank account for its encashment nor he made any arrangement for encashment of the cheque and thereby the petitioner cheated the respondent and consequently a complaint against the petitioner under Section 138 of the Act was filed.

4. On the basis of the preliminary evidence led by the respondent, cognizance was taken against the petitioner for offence punishable under Section 138 of the Act and on his appearance notice of accusation under Section 138 of the Act was put to him, to which he pleaded not guilty.

5. The respondent has examined himself and Branch Manager of H.P. State Cooperative Bank, Branch Chhatri. After the evidence of the respondent, the petitioner was examined under Section 313 Cr.P.C. In his defence, the petitioner examined Amreek Lal as DW-1 and Rajender Singh as DW-2.

6. As observed earlier, the learned trial Magistrate after hearing the parties and perusing the evidence on record, convicted the petitioner as aforesaid.

7. Dis-Satisfied and aggrieved by the judgment of conviction and sentence passed by learned trial Magistrate, the petitioner filed an appeal before the learned Sessions Judge, Mandi. However, the same was also dismsised and now being aggrieved and dis-satisfied by the impugned judgment of conviction and sentence passed by the learned trial Magistrate and affirmed by learned Sessions Judge, Mandi, the petitioner has filed the instant revision petition on the ground that both the learned Courts below have erred in holding that the cheque Ext.CW-1/1-A was issued by the petitioner in discharge of any liability as the cheque in fact had been issued towards security and the same had been misused by the respondent.

8. On the other hand, Mr. Hemant Kumar Thakur, learned counsel for the respondent would support the impugned judgments as the same have been passed in accordance with law and call for no interference.

I have heard the learned counsel for the parties and have also gone