The presumption in favor of the holder of a cheque under Section 139 of the Negotiable Instruments Act, 1881, and the requirement for the accused to rebut this presumption to avoid liability under Section 138.

H.S. MADAAN, J.

1. Complainant Aarti Puri had filed a complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') against Surinder Kumar, his wife Seema Aneja, son Aman Aneja and Lekh Raj Aneja on the allegations that accused were acquainted with the complainant and they had been doing business of footwear and since son of complainant was not performing well in his business of shuttering, the accused suggested to complainant that he should also start business of footwear; at the asking of the accused, the complainant paid a sum of Rs. 50 lakhs to them in cash, however, accused did not take the necessary action in the matter and kept putting it off; when the complainant asked them either to execute the MOU or to return the money, then they issued a cheque in favour of the complainant in the sum of Rs. 50 lakhs giving an assurance that it would be encashed; the complainant presented the cheque with her banker Punjab National Bank, which sent it for clearance to the banker of the accused but it was returned uncashed due to insufficiency of funds in account of the accused and complainant was informed accordingly vide memo dated 6.4.2011; thereafter the complainant served a legal notice dated 20.4.2011 upon the accused calling upon them to make the payment of the cheque amount within 15 days of receipt of notice but to no effect, as such, she filed a complaint in question in the Court of Judicial Magistrate Ist Class, Ludhiana.

2. After recording preliminary evidence, the accused were summoned. They had put in appearance and were granted bail. Notice of accusation under Section 138 of the Act was served upon them, to which, they pleaded not guilty and claimed trial.

3. During the course of her evidence, the complainant got her own statement recorded as CW1 besides examining Anand Khosla as CW2 and HC Palwinder Singh as CW3.

4. With that the complainant evidence stood closed.

5. Statements of accused were recorded under Section 313 Cr.P.C., 1973 in which all the incriminating circumstances appearing against such accused were put to them but they denied the allegations contending that they were innocent and had been falsely involved in this case.

6. In defence evidence, the accused examined Sunil Monga as DW1, who supported their defence version.

7. After hearing arguments, learned trial Magistrate convicted accused Surinder Kumar only, for an offence under Section 138 of the Act vide judgment dated 26.10.2016, whereas remaining accused Seema Aneja, Aman Aneja and Lekh Raj Aneja were acquitted. Vide order of that very date, accused Surinder Kumar was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 3,000/- and in default thereof, to undergo further rigorous imprisonment for a period of fifteen days.

8. Being aggrieved, accused Surinder Kumar had challenged judgment of his conviction and sentence order by way of filing appeal in the Court of Sessions, which was, however, dismissed by learned Additional Sessions Judge, Ludhiana vide judgment dated 11.5.2017 and he was taken into custody to undergo the sentence.

9. Feeling dissatisfied, the petitioner has filed the present revision petition, notice of which was issued to the respondent, who put in appearance through counsel.

10. I have heard learned counsel for the parties besides going through the record.

11. Learned counsel for the revision petitioner has contended that in the complaint or in the evidence no date, time, year or day when an amount of Rs. 50 lakhs was collected by the complainant from her relatives or when she had given it to four accused has been mentioned and no documentary proof is there to evidence the payment of money by the complainant to the accused, so much so her financial capacity to arrange that amount is also established. The trial Court by mis-appraisal of evidence and wrong interpretation of law has come to the conclusion that necessary ingredients of offence under S