Mr. K.C. Puri, J.: - This is an appeal directed by the complainant against the judgment dated 23.3.2007 passed by Shri Karnail Singh, Additional Sessions Judge, Jalandhar vide which the learned Additional Sessions Judge, accepted the appeal and dismissed the complaint under Section 138 of the Negotiable Instruments Act ( in short – NI Act) filed by the complainant-appellant after setting aside the order dated 2.12.2005 passed by Shri G.S.Dhillon, Judicial Magistrate Ist Class, Jalandhar, who convicted and sentenced the accused-respondent.

2. Brief facts of the case are that the complainant and the accused had friendly relations and the complainant gave Rs.3 lacs to the accused and in order to discharge his legal liability, accused-respondent issued cheque dated 9.6.2003 for a sum of Rs.3lacs drawn on Punjab & Sind Bank, Tanda Urma Branch, Hoshiarpur. The said cheque on presentation was dishonoured being insufficient funds. Thereafter, legal notice was served upon the accused calling him to make the payment of amount of the said cheque within statutory period but of no use, hence the complaint.

3. After recording preliminary evidence, the accused-respondent was ordered to be summoned to stand trial under Section 138 of the N.I. Act. On appearance of the accused and after hearing both the learned counsel for the parties, the trial Court served notice under Section 138 of the N.I. Act, upon the accused-respondent, to which he pleaded not guilty and claimed trial.

4. The complainant-accused himself entered into the witness box as CW-1 and closed his evidence.

5. Statement of the accused/respondent was recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to him, which he denied and pleaded his false implication. However, in defence the accused himself stepped into the witness box as DW-1 and also examined Hazara Singh as DW-2 and closed the defence evidence.

6. The trial Court after hearing the learned counsel for the parties convicted and sentenced the accused vide order dated 2.12.2005. However, the learned Additional Sessions Judge, Jalandhar accepted the appeal and dismissed the complaint vide judgment dated 23.3.2007.

7. Feeling dissatisfied with the aforesaid judgment passed by the learned Additional Sessions Judge, Jalandhar, the complainant-appellant has filed the present appeal as well as application under Section 378(4) of the Code of Criminal Procedure (in short – Cr.P.C.).

8. I have heard learned counsel for the parties and have gone through the case file.

9. Learned counsel for the appellant has submitted that the learned Additional Sessions Judge has wrongly held that the cheque in question is without consideration. It is submitted that there is presumption under Section 139 of the N.I.Act that cheque is for consideration unless contrary is proved. The mere fact that loan was advanced by a firm does not debar the complainant to advance loan to the accused/respondent in his personal capacity. So, the finding of the First Appellate Court in this regard are wrong. The leave to appeal be granted and accused be convicted. Learned counsel for the appellant has relied upon the following authorities :-

(1) Hiten P.Dalal vs. Bratindranath Banerjee 2001 (3) R.C.R. (Criminal ) 460 ;

(2) Hemant Pavel Gracias vs. Socorro Santan Fernandes 2008 (1) Civil Court Cases 743 (Bombay) ;

(3) Rangappa vs. Mohan 2010(3) RCR (Criminal) page 164 ; and

(4) Ganga Prashad vs. Lalit Kumar 2008 (3) RCR (Criminal) page 159.

10. I have considered the said submissions made by learned counsel for the appellant and have gone through the records of the case.

11. The learned First Appellate Court has observed that the firm in which complainant was a partner advanced a loan of Rs.80,000/- in the year 2001. It has also come on the record that accused committed default in payments of the instalments and accordingly in the year 2002, the Van was seized. The learned trial Court has given a finding that it would not be possi