The burden of proof on the accused to show that the cheque was not issued in discharge of any liability under Section 138 of the Negotiable Instruments Act.

JUDGMENT :

Heard Mr. Kripa Shankar Nanda, learned counsel for the petitioner.

2. Heard Mr. Tapas Roy, learned A.P.P. appearing on behalf of the opposite party- State.

3. Heard Mr. Awanish Shankar, learned counsel appearing on behalf of the opposite party no.2.

4. This petition has been filed for setting aside the judgment of conviction and sentence dated 31.05.2011 passed in Complaint No. 1610 of 2008 corresponding to TR No. 580/2011 by learned Judicial Magistrate, 1st Class at Hazaribagh whereby and whereunder the petitioner has been convicted for offence under Section 138 of Negotiable Instruments Act and sentenced to undergo Rigorous Imprisonment for one year with a fine of Rs. 2,00,000/- to be paid to the complainant. The petitioner also prays for setting–aside of the judgment passed in Criminal Appeal No. 107 of 2011 dated 28.04.2012 by learned Sessions Judge -III at Hazaribag whereby and whereunder he has been pleased to affirm the judgment passed by learned trial court.

Arguments of the Petitioner

5. Learned counsel for the petitioner submits that the impugned judgment of conviction of the petitioner under Section 138 of Negotiable Instruments Act is not sustainable in the eyes of law, in as much as, the cheque which was issued by the petitioner was only by way of security and not against any legally payable debt.

6. The learned counsel for the petitioner has also submitted that the circumstances in which the cheque was issued were also brought on record by the petitioner and he has filed Exhibit-A before the learned court below, which was marked as exhibit without any objection from the side of the complainant. On the basis of Exhibit-A, the learned counsel submits that the cheque was issued by stating that the complainant was petty contractor under the petitioner and the cheque was to be honoured only after the work is completed and the petitioner receives payment from the department. The learned counsel submits that the learned court below has failed to consider that the petitioner had discharged his onus regarding the issuance of cheque and has failed to consider the case on the principles of preponderance of probabilities. He submits considering the plea raised by the petitioner, the learned courts below could not have convicted the petitioner.

7. The learned counsel for the petitioner has also submitted that one of the conditions for offence under Section 138 of Negotiable Instruments Act has not been satisfied in the instant case as the cheque was never issued in discharge of a debt or liability or any legally enforceable dues. The learned counsel has also submitted that the complainant has taken a plea that a friendly loan was given to the petitioner, but the petitioner had adduced evidence to show that the complainant was a petty contractor under the petitioner.

Arguments on behalf of the opposite party

8. Learned counsel appearing on behalf of the opposite party, on the other hand, submits that the learned trial court has appreciated the Exhibit-A and recorded its independent finding on the said document and the plea of the petitioner was rejected by the learned court below by a well-reasoned judgment. He also submits that there is no scope for reappreciation of evidence in the revisional jurisdiction and to come to a different finding. He submits that there is no illegality or perversity in the impugned judgments of conviction of the petitioner. The learned counsel has also submitted that merely because the complainant is alleged to have stated that it was a friendly loan that does not absolve the petitioner of his liability under the cheque as there is legal presumption that the cheque once issued the same is issued in discharge of existing debt or liability.

Findings of this Court

9. After hearing learned counsel for the parties, this Court finds that the complaint was filed by Deepak Kumar (opposite party no. 2) stating that the complainant and the petitioner were friends and on 26.02.2008, the complainant handed over