Hon’ble Vivek Kumar Singh, J.—Heard Sri Rajrshi Gupta learned counsel for the Revisionist and Sri V.K. Jaiswal, learned counsel for the opposite party.

2. The present revision has been filed challenging the impugned judgment and order dated 11.12.2012 passed in Crl. Appeal No. 34 of 2012 (Bajrang Tripathi v. State of U.P. and others).

3. Brief facts of the case are that on account of dishonour of cheque No. 839473 dated 21.7.2007 of India Overseas Bank of Branch Azamgarh for Rs. 25 lacs issued by opposite party No. 2, the revisionist filed Criminal Revision against opposite party No. 2 under Section 138 of Negotiable Instrument Act. The said cheque was returned by Punjab National Bank vide letter dated 15.4.2008 alongwith the memorandum of India Overseas Bank, Azamgarh Branch. Pursuant to that a notice dated 24.4.2008 under Section 138 Negotiable Instrument Act was sent to opposite party No. 2 as he failed to honour his commitment. In pursuance of the summoning order, the opposite party No. 2 appeared before the trial Court and admitted the issuance of cheque.

4. The Chief Judicial Magistrate, Allahabad by means of judgment dated 31.1.2012 convicted the opposite party No. 2 for offence under Section 138 of Negotiable Instrument Act and awarded one year imprisonment alongwith fine of Rs. 50 lacs. Aggrieved by the order of the Chief Judicial Magistrate, Allahabad, the opposite party No. 2 filed Criminal Appeal being Criminal Appeal No. 34 of 2012. The Additional Sessions Judge, Court No. 8, Allahabad by means of judgment dated 11.12.2012 allowed the criminal appeal and acquitted the opposite party No. 2 from the charges for offence under Section 138 of Negotiable Instrument Act. In the subject revision the order passed by Additional Sessions Judge, Court No. 8, Allahabad dated 11.12.2012 is under challenge. Learned counsel for the revisionist has drawn attention of the Court towards Section 118 of the Negotiable Instrument Act. The contents of the complete Section 118 of Negotiable Instrument Act is quoted hereinbelow:

118 Presumptions as to negotiable instruments.—Until the contrary is proved, the following presumptions shall be made:—

(a) of consideration—that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

(b) as to date—that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance—that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) as to time of transfer—that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of indorsements—that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f) as to stamps—that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that holder is a holder in due course—that the holder of a negotiable instrument is a holder in due course:

Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.

5. Learned counsel for the revisionist has brought to the notice of this Court a judgment of Hon’ble Apex Court passed in C.C. Alavi Haji v. Palapetty Muhammed and another in Criminal Appeal No. 767 of 2007 decided on 18.5.2007. He has drawn the attention of the Court towards paragraph 2 of the said Judgment which is with regard to question of service of notice in terms of clause (B) of proviso to Section 138 of the Negotiable Instrument Act 1881. The order of the Apex Court in the said judgment has observed th