Presumption in favor of the holder of the cheque under Section 139 of the Negotiable Instruments Act.

JUDGMENT :

1. Heard Mr. Sanjay Kumar Sinha, the learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Suraj Singh, the learned counsel appearing on behalf of the Opposite Party No. 2.

3. Heard Ms. Nehala Sharmin, the learned A.P.P. appearing on behalf of the Opposite Party No.1-State.

4. The present criminal revision application has been filed against the Judgement dated 05.09.2012 passed by the learned Additional Sessions Judge, I-cum-Special Judge, Dhanbad in Criminal Appeal No. 104 of 2012, whereby and whereunder the Judgment of conviction and the order of sentence dated 08.02.2012 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No. 1586 of 2006 / T.R. No. 516 of 2012 was affirmed and the criminal appeal was dismissed.

5. The learned Trial Court had convicted the petitioner for the offence under Section 138 of the Negotiable Instruments Act and had sentenced him to undergo Simple Imprisonment for two years and a fine double of the cheque amount i.e. Rs.45,000 x 2 = Rs.90,000/- as compensation and cheque amount. The learned trial court had directed the petitioner to pay Rs.80,000/- to the Complainant as compensation and to deposit the rest amount of Rs.10,000/- in the Government Account, Government of Jharkhand as fine and in default thereof, to undergo Simple Imprisonment for further three months as a separate part of the sentence.

6. Learned counsel appearing on behalf of the petitioner while advancing his arguments submitted that the only point involved in this case is that the cheque itself was not issued in discharge of any liability and accordingly, one of the basic ingredients of the offence under Section 138 of the Negotiable Instruments Act was not at all satisfied. Learned counsel further submitted that the cheque was issued merely as a guarantee and not in discharge of any debt.

7. Learned counsel appearing on behalf of the Opposite Party No. 2, on the other hand, while opposing the prayer, submitted that it is not in dispute that the petitioner had issued the cheque and the other requirements for filing of the Complaint case under Section 138 of the Negotiable Instruments Act were duly satisfied. He further submitted that so far as the issuance of the cheque against the legally payable debt is concerned, it is a presumption attached with issuance of the cheque and the said presumption has not been rebutted by the petitioner. Learned counsel also submitted that the learned courts below have returned concurrent findings in connection with the basic ingredients of the offence under Section 138 of the Negotiable Instruments Act and no illegality or perversity as such has been pointed out by the learned counsel for the petitioner calling for any interference under revision jurisdiction.

8. Learned counsel appearing on behalf of the Opposite Party No.1-State supported the arguments advanced on behalf of the Opposite Party No. 2.

9. After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case, this Court finds that the prosecution case is based on a Complaint being C.P. Case No. 1586 of 2006 presented on 27.09.2006 alleging inter-alia that both the parties were businessmen and were known to each other. The Complainant’s son was trying to change his transporting business after selling his trucks and about this, the petitioner had knowledge and so the petitioner came in contact with the Complainant side and offered his son to participate in a new business and after being convinced, the Complainant spent a huge amount in the business of the petitioner by selling his trucks, but on asking to repay the benefits of the share, the petitioner issued a post dated cheque bearing no. 831576 dated 07.08.2006 for a sum of Rs.45,000/- in favour of the Complainant. On presentation of the cheque on 10.08.2006 with the consent of the petitioner, the same was dishonoured due to being insufficient fund. The further case of the Co