( 1. ) BEING aggrieved by judgment dated 8-11-06 passed by IInd Additional sessions Judge, (Fast Track), Neemuch in Criminal Appeal No. 180/05, whereby the judgment dated 16-9-05 passed in Criminal Case No. 622/03, whereby the petitioner was convicted under Section 138, Negotiable Instruments Act, (which shall be referred hereinafter as an Act) and was sentenced for RI for a period of one year with fine of Rs. 5,000/- was modified and the sentence of RI was set aside with a direction to pay a fine of Rs. 40,000/- and in case of default the petitioner shall be sent to jail for a period of six months, the present petition has been filed.

( 2. ) SHORT facts of the case are that the respondent No. 1 filed a complaint alleging that petitioner was in need of money in connection of his business, therefore, respondent No. 1 gave a sum of Rs. 37,000/- to the petitioner as loan on 5-2-2003. Further case of the respondent No. 1 was that petitioner gave post dated cheques of Rs. 15,000/-, Rs. 7,000/-, Rs. 12,000/- and rs. 3,000/-, dated 25-3-03,24-4-03,20-5-03 and 7-7-03 of Jila Sahkari Kendriya bank, Mandsaur to the respondent No. 1. Further case of the respondent No. 1, was that on 9-9-03 the cheque was presented by the respondent No. 1, but the same was returned by the concerned bank with a memo bearing remark "exceeds arrangements". It was alleged that another three cheques were presented by the respondent No. 1 on 12-9-2003, but they also returned by the bank with the same remark, hence the notice was issued by the respondent no. 1, where by the demand was raised, but was of no avail, hence the complaint was filed alleging that the petitioner has committed an offence, which is punishable under Section 138 of the Act, hence the petitioner be punished by rigoraus Imprisonment with fine.

( 3. ) THE complaint was contested by the petitioner. After framing of the charge and recording of the evidence, learned Trial Court allowed the complaint filed by the respondent No. 1 holding that the petitioner has committed an offence punishable under Section 138 of the Act and awarded sentence of one year with fine of Rs. 5,000/-, against which an appeal was filed by the petitioner, which was disposed of by the Appellate Court, whereby the conviction under section 138 of the Act was maintained, however, the sentence of RI of one year was set aside with a direction that the petitioner shall pay a sum of Rs. 40,000/-within the stipulated time. It was further directed that in case the petitioner fails to pay the amount of fine within the stipulated time, petitioner shall be sent to jail as directed by the learned Trial Court for non-compliance of judgment. Against the judgment passed by the learned Appellate Court the petition has been filed.

( 4. ) MR. Sanjay Sharma, learned Counsel for the petitioner argued at length and submits that the learned Court below committed error in convicting the petitioner for an offence under Section 138 of the Act. It is submitted that no loan was given to the petitioner by the respondent No. 1 on 5-2-03 or any other date. It is submitted that the burden to prove that the loan of Rs. 37,000/- was given to the petitioner on 5-2-03 was on respondent No. 1, but there is nothing on record to show that any loan was given to the petitioner by respondent No. 1. It is submitted that right from beginning the defence of the petitioner was that the respondent No. 1 was running a B. C. in which 18 persons participates and a fixed amount is being given on monthly basis and the entire amount so collected is being given to one person out of the participants and in security of that the cheques are being taken. Learned Counsel submits that enough evidence was on record to show that no loan amount was given to the petitioner and the respondent No. 1 was not having sufficient funds to give the loan to the petitioner, but the entire evidence adduced by the petitioner was not at all taken in to consideration by the learned Court below.