JUDGMENT :

DHARAM CHAND CHAUDHARY, J.

1. Judgment dated 28.06.2012, passed by learned Sessions Judge, Shimla in Criminal Appeal No. 46-S/2010 of 2010, whereby the judgment passed by learned Judicial Magistrate 1st Class, Court No. 3, Shimla was affirmed, is under challenge in this Court on the grounds inter-alia that both Courts below have completely ignored the evidence available on record. The evidence available on record suggests the only inference that charge against the petitioner (hereinafter referred to as the ‘accused’) was not proved beyond all reasonable doubt. Also that, inherent defects have been overlooked. The factum of respondent No. 2 (hereinafter referred to as the ‘complainant’) having failed to prove his accounts has also been erroneously overlooked. The improvements and discrepancies in the evidence produced by the complainant which go to the very root of the case have also been ignored without assigning any reasons. The evidence available on record rather has been misread and mis-appreciated. Both Courts below allegedly erred in appreciating the provisions of Section 139 of the Negotiable Instruments Act, as in the case in hand, the presumption to be drawn under the Section ibid, does not absolve the complainant from discharging the initial burden to prove the factum of any outstanding amount due to him from her.

2. Admittedly, the accused approached the complainant to execute the construction work of her house in the area of Kasumpati in the year 2003. He agreed to do so. On the completion of the construction work of the house, a sum of Rs. 3,00,000/- was outstanding amount in his favour and payable by the accused. He requested her to clear his dues, but of no avail. Ultimately, on 3.9.2007, she issued a post dated (22.1.2008) cheque Ext. CW-1/A in the sum of Rs. 3,00,000/- of her accounts with State Bank of India, Shimla. The cheque was payable on and after 22.1.2008. When the accused failed to clear his dues on or before 22.1.2008, he presented the cheque Ext. CW-1/A for payment in the bank, however, the same was returned vide memo dated 22.1.2008, Ext. CW-1/C on the ground of insufficient funds. The complainant had served the accused with legal notice Ext. CW-1/D through registered post and also under the certificate of posting vide postal receipts Ext. CW-1/E to Ext. CW-1/F. The accused when found to have avoided to receive the notice and also to clear the liability within the stipulated period, the complaint was instituted on 1st March, 2008.

3. Learned trial Judge on holding full trial and taking into consideration the material available on record has arrived at a conclusion that a sum of Rs. 3,00,000/- was payable by the accused to the complainant. She issued the cheque Ext. CW-1/A, however, the same got dishonoured due to insufficient funds. Also that, the complainant has discharged the initial burden upon him to prove that he was entitled to recover Rs. 3,00,000/- from the accused and as she failed to pay the same as well as issued post dated cheque and as she failed to discharge the onus upon her by producing the evidence to prove otherwise that neither the amount in question was payable by her nor she issued the cheque has, therefore, concluded that she has committed an offence punishable under Section 138 of the Negotiable Instruments Act. Consequently, she has been convicted to undergo simple imprisonment for three months and also to pay Rs. 3,50,000/- to the complainant as compensation qua the loss he suffered.

4. Learned lower appellate Court has affirmed the judgment passed by learned trial Court and maintained the conviction and sentence passed against the accused.

5. As pointed out at the out set, the legality and validity of the impugned judgment though has been questioned on several grounds, however, she failed to substantiate the same because neither she nor learned counsel representing her has put in appearance, not only today, but also on three dates previously fixed i.e. 12.04.2018, 08.0