The main legal point established in the judgment is the presumption of liability of the drawer of the cheques under Section 138 of the Negotiable Instruments Act, 1881, and the burden of proof on the accused to rebut the presumption under Section 139.

JUDGMENT

Vikas Bahl, J. (Oral) - CRM-34292-2022

1. This is an application filed for grant of leave under Rule 3-A (1) of Chapter VI, Part B, Volume V of the Punjab and Haryana High Court Rules and Orders to file the present petition.

2. In view of the averments made in the application, the same is allowed and leave is granted under the aforesaid Rules and Orders to file the present petition.

CRR No. 1890-2022

1. Challenge in the revision petition is to the order dated 13.07.2022 passed by the learned Additional & Sessions Judge, Hisar, vide which the Criminal Appeal bearing No. 91 of 2021 filed by the petitioneraccused against the judgment of conviction and the order of sentence dated 15.07.2021, passed by learned Judicial Magistrate Ist Class, Hisar, has been dismissed and the petitioner has been held guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

2. Learned counsel for the petitioner has submitted that in the present case, the complainant had promised to manage a loan of Rs. 10,00,000/- from the bank and to complete banking formalities, the complainant had taken 05 blank cheques along with copy of Aadhar card and Pan card from the petitioner but the complainant did not procure any loan for the petitioner and misused the said blank cheques against the petitioner. It is further submitted that even the affidavit of the petitioner Ex. P-5, relied upon by the complainant was a blank document signed by the petitioner and the same had been misused.

3. This court has heard learned counsel for the petitioner and has perused the paper book.

4. The complainant/respondent had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, on the allegation that the petitioner had borrowed an amount of Rs. 3,00,000/- from him in the month of January 2018 with a promise to repay the said amount in March 2018, along with interest @ 12% per annum. It is further alleged that when the complainant had paid Rs. 3,00,000/- to the petitioner on 08.01.2018, a writing/affidavit (Ex. P-5) was executed by the petitioner in favour of the complainant with respect to the same. It was further the case of respondent no. 2 that when he demanded his money back, the petitioner, in discharge of his outstanding and legally enforceable liability, had issued a cheque dated 17.03.2018 amounting to Rs. 3,00,000/- from his bank account with Oriental Bank of Commerce, in favour of the complainant with respect to the principal amount and had even promised that he was would pay the interest within a short period. On the presentation of the said cheque for encashment, the same was returned with the remarks 'funds insufficient vide memo dated 19.03.2018. The complainant thereafter served a legal notice upon the accused on 31.03.2018 and called upon him to pay the cheque within 15 days of the receipt of the legal notice. The petitioner had neither sent any reply, nor made payment of the said cheque and thereafter the complaint under Section 138 of the Negotiable Instruments Act, 1881, was filed. The complainant examined himself as PW-1 and tendered his affidavit as Ex. PW-1/A and also produced on record the following documents:-

5. Both the courts below, after considering the evidence and the documents on record, convicted the petitioner under Section 138 of the Negotiable Instruments Act, 1881 and sentenced the petitioner to simple imprisonment for a period of 06 months for the offence punishable under Section 138 of the Act of 1881 and directed the petitioner to pay compensation to the tune of Rs. 3,00,000/- i.e. the amount of the cheque under Section 143 (1) (proviso) of the Negotiable Instruments Act, 1881, read with Section 357 (1) (3) of the Cr.P.C.

6. The Appellate Court observed in pa