The presumption of liability of the drawer of the cheques under Sections 118 and 139 of the Negotiable Instruments Act, and the implications of a security cheque.

JUDGMENT

Vikas Bahl, J. (Oral). - Challenge in the present Criminal Revision is to the JUDGMENTdated 12.03.2018/15.03.2018 vide which the petitioner has been convicted under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as 'the Act of 1881') and has been sentenced for simple imprisonment for a period of one month and has been further directed to pay the compensation of the cheque amount i.e. Rs.1,00,000/- to the complainant and in default of the said payment, to further undergo simple imprisonment for a period of three months.

2. Challenge has also been made to the judgment dated 05.04.2022 passed by the Additional Sessions Judge, Hisar vide which the appeal preferred by the petitioner has been dismissed and sentence has been upheld.

3. Learned counsel for the petitioner has submitted that in the present case, there is no proof regarding the fact that a friendly loan was given by the complainant to the petitioner and even the date of the said loan has not been mentioned. It is further submitted that a blank cheque was given as a security to the complainant by the petitioner and the dispute had arisen between the petitioner and the complainant as the complainant had told the petitioner to sell the vehicle loaded with chicks without the knowledge of the company and the petitioner had refused to do the same and thereafter, the complainant did not allow the vehicle of the petitioner to leave the poultry farm unless the petitioner paid him Rs.54,000/-. It is argued that when the petitioner had paid an amount of Rs.54,000/- to the complainant then the petitioner also gave the cheque in question as a security to the complainant. It is also argued that the complainant had returned Rs.4000/- to the petitioner. It is contended that the said security cheque has been misused by the complainant.

4. This Court has heard the learned counsel for the petitioner and has perused the paper book.

5. Both the Courts below had concurrently found that an amount of Rs.1,00,000/- was advanced by the complainant to the petitioner as a friendly loan and the date of the said advancement of loan was stated to be 15.03.2016, which fact transpires from the cross-examination of the complainant. It had further been found that the complainant had sold his buffalo and had advanced the said amount of Rs.1,00,000/- to the petitioner from the sale of the same. With respect to the fact that there were friendly relations between the parties, it was observed that even during cross- examination of CW1 as well as when the statement under Section 313 Cr.P.C. was recorded, it was the defence taken by the present petitioner that he had taken poultry farm of the complainant-Baljeet Singh on rent and he used to pay a monthly rent to the complainant and even DW1 and DW2 have deposed to the effect that the said alleged poultry farm was being run by the petitioner. It was observed that even from the suggestions and the defence put by the petitioner, it was found that defence initially sought to be taken that petitioner and complainant were strangers, was false and that there was a relationship between the parties. With respect to the financial capacity of the complainant, it was observed that the complainant owned 10.5 acres of land and as stated hereinabove, he had sold his buffalo in March, 2016 for a sum of Rs.1,00,000/-. In judgment dated 05.04.2022 passed by the Additional Sessions Judge, Hisar, reliance had been placed upon the judgment of the Hon'ble Supreme Court in Rohitbhai Jivanlal Patel Vs. State of Gujarat and another, reported as 2019(18) SCC 106, in which it was held that a presumption is drawn under Sections 118 and 139 of the Act of 1881 in favour of the person to whom the cheque has been given and thus, the Courts are not supposed to approach the case in a manner so as to question the want of evidence on the part of the complainant as regards the source of funds for advancement of loan to the accused. It was further held that after