The burden of proof lies on the accused to rebut the presumption under Section 139 of the Negotiable Instruments Act when faced with dishonoured cheques.

JUDGMENT

Jasjit Singh Bedi, J. (Oral) - The prayer in the present petition is for setting aside the impugned judgment dated 23.05.2022 passed by the learned Additional Sessions Judge, Faridabad, whereby the learned Court upheld the judgment dated 30.11.2017 and order of quantum of sentence dated 06.12.2017 passed by the learned Judicial Magistrate, 1st Class, Faridabad.

2. The brief facts of the case are that the complaint was filed by complainant/respondent No.1-Sanjay Sharma, who stated that he had advanced a friendly loan of Rs.4,00,000/- to the accused/petitioner in 2014 for a period of four months. In discharge of his liability, the accused/petitioner issued a cheque bearing No.205265 dated 24.10.2014 of Rs.2,00,000/- and cheque bearing No.205266 dated 24.10.2014 of Rs.2,00,000/- both drawn on HDFC Bank Ltd., SCO No.139/140, Sector-21-C, Faridabad (hereinafter referred to as the cheques in question) in favour of the complainant. When the complainant presented the said cheques with his banker, the said cheques were dishonoured due to reason 'funds insufficient' vide return memo dated 09.12.2014. Thereafter legal notice dated 24.12.2014 through registered post was issued to the accused calling upon him to make the payment. No payment was made by the convict/petitioner. With these submissions, the complaint was filed on 27.01.2015 to summon and prosecute the accused under Section 138 of the Negotiable Instruments Act. After recording of the preliminary evidence, the petitioner/accused came to be summoned vide order dated 27.01.2015.

3. Statement of the convict/petitioner under Section 263(g) Cr.P.C. was recorded on 21.08.2015 in which the convict/petitioner denied his liability in question in favour of the complainant. He stated that he took only Rs.1 lakh from the complainant on interest out of which he had already paid Rs.90,000/- to the complainant. He had given blank signed cheques to the complainant as security.

4. The complainant appeared in the witness box as CW-1 and was allowed to be cross-examined by the convict/petitioner. CW-1 proved the cheques in question as Ex.C1 and Ex.C3, return memos Ex.C2 and Ex.C4, legal notice as Ex.C5, postal receipt Ex.C6, acknowledgement of assessment made in the year 2012-13 as Ex.CA, income tax return for assessment years 2013-14, 2014-15 and 2015-16 as Ex.CB to Ex.CD, affidavit of acknowledgement of loan dated 23.04.2014 Ex.CE and receipt Ex.CF. In defence the convict/petitioner examined Iklakh as DW1 but his affidavit of deposition was discarded being incoherent vide order dated 15.09.2017 by the Trial Court.

5. The learned Judicial Magistrate, 1st Class, Faridabad convicted the convict/petitioner and sentenced vide judgment dated 30.11.2017 as under:-

6. Pursuant to the aforementioned conviction, the convict/petitioner preferred an appeal before Court of the learned Additional Sessions Judge, Faridabad which upheld the conviction vide judgment dated 23.05.2022.

7. Aggrieved by the aforementioned judgments, the present revision-petition has been filed.

8. The learned counsel for the convict/petitioner contends that the Courts below have erroneously recorded judgments of conviction. In fact, the complainant did not have requisite funds to advance as a loan to the convict/petitioner. The statement of the complainant recorded as CW-1 was materially discrepant and unbelievable. No independent witness of the transaction was examined to substantiate the claim of the complainant that in fact he had advanced a loan of Rs.4,00,000/- to the petitioner/accused. In fact, the petitioner/accused had taken a loan of Rs.1,00,000/- from respondent No.1-complainant and a sum of Rs.90,000/- had been repaid. A security cheque lying with respondent No.1-complainant had been