The burden of proving that a cheque had not been issued for the discharge of a lawful debt or liability lies on the accused.

JUDGMENT :

Harnaresh Singh Gill, J.

1. The present criminal revision has been filed by the petitioner-against the judgment dated 28.05.2018 passed by Additional Sessions Judge, Fazilka vide which in the criminal appeal filed by him against the judgment/order dated 18.05.2015 passed by Sub-Divisional Judicial Magistrate, Abohar, his conviction under Section 138 of Negotiable Instrument Act, 1881 (for short 'the Act') and sentence of rigorous imprisonment for a period of two years and to pay a fine of Rs.5000/- and, in default thereof, to further undergo rigorous imprisonment for six months, was maintained.

2. Brief facts of the case are that a complaint was filed by complainant i.e. the Primary Cooperative Agriculture Development Bank Limited through its authorized representative under Section 138 of the Act against the petitioner with the allegation that the petitioner had raised a loan from the Bank which was to be repaid in installments along with interest as agreed upon. Therefore, to discharge his partial recoverable legal liability, the petitioner issued a cheque bearing No. 162802 dated 24.10.2013 for a sum of Rs.2,60,000/- drawn on Punjab and Sind Bank in favour of the respondent-Bank. Accordingly, the respondent-Bank had presented the said cheque in the Bank for encashment but the same was dishonoured on the account of insufficient funds on 25.10.2013. Thereafter, the respondent-Bank served a legal notice on the petitioner on 13.11.2013.

3. After preliminary evidence, vide order dated 01.02.2014 the petitioner was summoned to face the trial. Statement of the petitioner under Section 313 Cr.P.C. was recorded in which the petitioner had denied the charges against him and pleaded not guilty and claimed trial.

4. As noted by the trial court, the petitioner did not lead any evidence in his defence. As mentioned above, the trial court vide judgment and order dated 18.05.2015 convicted the petitioner for the offence punishable under Section 138 of the Act and sentenced him accordingly.

5. Thereafter, petitioner preferred an appeal which came up for hearing before the Additional Sessions Judge, Fazilka. The Additional District Judge, Fazilka vide judgment dated 28.05.2018 dismissed the appeal preferred by the petitioner and upheld the judgment and order passed by the trial court.

6. Learned counsel for the petitioner has argued that the complaint in question was filed through Mayank Rai, who was not competent to file the present complaint. Moreover, the bank had failed to prove on record that there was a debt against the petitioner at any stage. Moreover, the cheque in question was given as a security while advancing the loan to the petitioner but the Bank had misused the same. It had further failed to prove that there was any legal liability towards the petitioner for which the petitioner had issued the cheque. Counsel for the petitioner has further argued that the cheque for a sum of Rs.2,60,000/- in favour of the respondent-Bank, was never issued.

7. Learned counsel for the respondent-Bank has submitted that Mayank Rai was authorized representative of the Bank and was competent to file the criminal complaint. Counsel for the respondent-Bank has further submitted that the petitioner had taken loan from the Bank but failed to return the same. Thus, in order to discharge his legal liability, the petitioner had issued cheque in question and assured the respondent-Bank that the cheque in question will be encashed whenever presented for encashment within the stipulated period. Since the cheque was presented for encashment but the same was dishonoured due to insufficient funds, a legal notice was issued to the petitioner on 13.11.2013. As the petitioner had failed to discharge his liability, the courts below have rightly held the petitioner guilty.

8. I have heard learned counsel for the parties and with their able assistance have gone through the record of the case.

9. It is apparent that the cheque in question was issued by the petitioner