JUDGEMENT :

SANJAY PRASAD, J.

1. The present Criminal Revision No. 459 of 2018 has been filed by the petitioner challenging the judgment dated 21.02.2017 passed in Criminal Appeal No. 26 of 2015 by the learned Additional Sessions Judge-V, Jamshedpur whereby learned Additional Sessions Judge-V, Jamshedpur has dismissed the Criminal Appeal No. 26 of 2015 and affirmed the judgement of conviction and order of sentence dated 24.02.2015 passed by Sri Arbind Kachhap, Judicial Magistrate, 1^st Class, Jamshedpur in connection with C/1 Case No. 1279 of 2012 by which the petitioner has been convicted for the offence under Section 138 of the N. I. Act and has been sentenced to undergo R. I. for a period of One (1) year and to pay a sum of Rs. 5,00,000/- as compensation to the complainant- O. P. No. 2.

2. The complainant’s case, in brief, is that the complainant and the accused were in friendly terms and taking advantage of the friendly term, the accused- petitioner took a friendly loan of Rs. 3,40,000/- from the complainant, on 27.10.2011, to invest in the business. For discharge the aforesaid liability, the accused issued a post dated cheque no. -028509 dated 22.02.2012, for the amount of Rs. 3,40,000/-. The complainant presented the said cheque to his bank IDBI Bank Limited Mango Branch, but the same was dishonoured by the Bank through memo dated 19.03.2012, with a reason that “Account Closed”. The complainant informed to accused for that dishonour of cheque but the accused flatly refused. On 07.04.2012, complainant sent a legal notice but no response was received.

3. Heard learned counsel for the petitioner and learned APP for the State and learned counsel for the opposite party no. 2.

4. It is submitted by the learned counsel for the petitioner that the judgments and order passed by the learned Court below are not sustainable in law. It is submitted that in this case notice was not served to the present petitioner. It is submitted that the cheque was not filled-up by the present petitioner and the present petitioner had only issued a cheque to the opposite party no. 2 as a surety and not for discharge of legal debt. It is submitted that the present case has been instituted on 19.05.2012, but it has not been disclosed in complaint petition as to when notice was served to the present petitioner. It is submitted that in this case the CW-1 (complainant himself) has been examined and in his cross- examination he deposed that he had given Rs. 3,40,000/-to the present petitioner in cash and he had further deposed during his cross-examination that he had not taken any money receipt from the petitioner in respect of the money given by him to the petitioner. It is further submitted that complainant adduced that he cannot show any documentary evidence regarding transaction of money and he also stated that he had not filed income tax return of said amount of Rs. 3,40,000/-. It is further stated that the petitioner had given cheque to him on the same day when he had taken certain amount from him. It is submitted that it is not necessary that the accused-petitioner to examine himself for discharging burden of proof and the accused-petitioner has constitutional right to maintain silence. Learned counsel for the petitioner has placed reliance upon the judgment rendered in the case of Krishna Janardhan Bhat Versus Dattatraya G. Hegde reported in 2008 (1) Supreme 306 and in the case of Sanjay Mishra Versus Kanishka Kapoor @ Nikki reported in 2009 Cr L J 3777 (Bombay High Court).

5. Learned counsel for the petitioner has further submitted that in view of the judgment rendered by the Hon’ble Supreme Court in the case of Krishna Janardhan Bhat Versus Dattatraya G. Hegde reported in 2008 (1) Supreme 306, it was incumbent upon the complainant to show the prove of payment by producing books of account and for filing the said amount in Income Tax Return. It is submitted that it is also not necessary for any accused to get examined himself to discharge the burden of