The burden of proof regarding the issuance of a cheque as security lies with the petitioner, and insufficient evidence can lead to conviction under Section 138 of NI Act.

N.K. Mody, J.

1. Being aggrieved by the judgment dated 23.1.2009 passed by III Additional Sessions Judge, Dewas in Cr.A. No. 210/08 whereby the judgment dated 27.9.2008 passed by JMFC, Dewas in Criminal Case No. 1991/07 whereby the petitioner was convicted under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as "NI Act") with a direction to pay a sum of Rs. 30,000/- as fine, failing which sentence was awarded for a period of two months, was maintained, the present petition has been filed.

2. Short facts of the case are that the respondent filed a complaint under Section 138 of NI Act on 1.6.2007 wherein it was alleged that the respondent is an Iron Merchant and is doing his business in the name and style M/s. National Iron Traders, while petitioner is doing his business in the name and style M/s. Gayatri Advertising. It was alleged that in a commercial transaction petitioner was indebted to the respondent for a sum of Rs. 20,000/-, against which a cheque of Rs. 15,000/- was issued by the petitioner on 15.9.2006 of Saraswat Co-operative Bank Ltd. in favour of respondent. It was alleged that the said cheque was presented by the respondent for collection through his Banker on 8.2.2007 but the same was returned along with memorandum dated 11.2.2007 bearing remark "insufficient funds". It was alleged that thereafter notice was issued on 28.2.2007 of which acknowledgement was not received by the respondent, therefore, a complaint was lodged by the respondent on 11.4.2007. In response to it, a certificate of service was sent by the Post Office on 23.5.2007, according to which notice was duly served on the petitioner on 13.3.2007. It was alleged that in spite of receipt of notice neither it was replied nor the cheque amount was paid, hence the petitioner has committed an offence which is punishable under Section 138 of NI Act. It was prayed that after taking cognizance petitioner be convicted. After taking cognizance and also after securing presence of the petitioner charge was framed and after recording of evidence petitioner was convicted, against which an appeal was filed by the petitioner which was dismissed and the impugned judgment was maintained, hence this petition.

3. Learned Counsel for the petitioner argued at length and submits that the impugned judgments passed by the learned Courts below are illegal, incorrect and deserves to be set aside. It is submitted that the complaint was not filed within the statutory period and was barred by 33 days. It is submitted that learned Courts below committed error in condoning the delay, while there was no satisfactory ground for the same. It is submitted that the alleged cheque was in security and the complainant has admitted this fact in his cross-examination, but in spite of that learned Courts below committed error in convicting the petitioner. For this contention reliance is placed on a decision of this Court in the matter of Mujeeb Husain @ Sonu v. Ismail s/o Noorbaksh Musalman III (2009) BC 112 : 2009(2) MPLJ 285, wherein in a case where cheques issued by the petitioner by way of security and not towards any amount due to the complainant it was held that it would not come within the purview of Section 138 of N.I. Act.

4. On the strength of aforesaid decision, learned Counsel for the petitioner submits that since the respondent has admitted in his cross-examination that the cheque was in security of the loan amount, therefore, both the Courts below committed error in convicting the petitioner. It is submitted that the impugned judgments passed by the learned Courts below are illegal, incorrect and deserves to be set aside. It is submitted that petition filed by the petitioner be allowed.

5. Learned Counsel for the respondent submits that after due appreciation of evidence the learned Courts below passed the judgment, which requires no interference. It is submitted that respondent has never admitted that the cheque was issued in security of the