ORDER :

Anubha Rawat Choudhary, J.

Heard Mr. A.K. Sahani, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Anish Mishra, learned counsel for the State, Advocate.

3. Heard Mr. Tapas Roy, learned counsel appearing on behalf of the State.

4. Present revision petition is directed against the judgment dated 19th September 2012 passed by learned Additional Sessions Judge-I, Palamau at Daltonganj in Cr. Appeal No.20 of 2006, affirming the judgment of conviction, but modifying the sentence of the petitioner in connection with the offence under Section 138 of Negotiable Instrument Act, 1882 (Hereinafter referred as N.I. Act).

5. The petitioner was convicted vide judgment and sentence dated 27.02.2006 passed by learned Judicial Magistrate, 1st Class, Palamau at Daltonganj in C.P. Case No.189 of 1997 (T.R. No.442 of 2006), under Section 138 of N.I. Act and was sentenced for simple imprisonment for a period of one year with a fine of Rs.2,000/- and in default of payment of fine, he was directed to undergo further simple imprisonment for a period of three months.

6. The learned Appellate Court modified the sentence and directed that the petitioner would pay a fine of Rs.2,10,000/- and in default of payment of fine, he has to serve simple imprisonment for a period of six months.

Arguments of the petitioner

7. Learned counsel for the petitioner has submitted that the condition precedent for constituting an offence under Section 138 of N.I. Act has not been satisfied in the present case, in as much as, the legal notice regarding bouncing of cheques, which is said to have been sent by the complainant to the petitioner, has not been exhibited before the learned court below and there is no finding regarding date of dispatch and/or service of legal notice and only one receipt regarding registered post has been exhibited as exhibit-2. He has also been submitted that the postal receipt on account of dispatch by itself does not prove the dispatch of legal notice and further no date regarding dispatch of legal notice to the petitioner has been mentioned in the complaint petition or even in the oral evidence. He submits that mere bouncing a cheque is not enough to constitute an offence under section 138 N.I Act. Learned counsel submits that in view of the aforesaid facts, the conviction of the petitioner for the offence under Section 138 of N.I. Act cannot be sustained in the eyes of law.

Arguments of the opposite parties

8. The learned counsel appearing on behalf of the opposite party No.2 has opposed the prayer and has referred to a Judgment passed by the Hon’ble Supreme Court in (2018) 8 SCC 165 (Kishan Rao Vs. Shankargouda) to submit that there is presumption in favour of holder of cheque in terms of Section 139 of N.I. Act and in the instant case, issuance of cheque and the fact that it had bounced due to insufficient funds is not dispute. It is submitted that the petitioner, though was entitled to raise a probable defence to create doubt with regard to existence of debt or liability, had not discharged his burden and accordingly the petitioner has been rightly convicted for the offence under Section 138 of N.I. Act. He has further submitted that there is no scope of re-appreciation of materials on record and coming to a different finding in revision jurisdiction and the discrepancies, which has been pointed out by learned counsel for the petitioner are not material discrepancies, so as to call for any interference in revisional jurisdiction. He submits that the learned courts below have rightly come to the concurrent findings with regards to the fact that condition precedent for constituting the offence under Section 138 of N.I. Act were satisfied and accordingly no interference is called for by this Court in revisional jurisdiction.

9. The learned counsel for the opposite party state has supported the learned counsel for the opposite party no.2.

Findings of this court

10. After hearing the learned counsel for the parties, this Court finds