The burden of proof in cases of cheque dishonour under Section 138 of the Negotiable Instrument Act lies with the respondent to prove the issuance of the cheques to discharge a legal liability.

Judgment

1. This order shall also govern the disposal of Cr. R. Nos. 710/08 and 711/08, as in all the three petitions petitioner is one and the same and in Cr. R. Nos. 709/08 and 710/08 respondent is also one and the same, so far as respondent of Cr. R. No. 711/08 is concerned, he is the son of the respondent of Cr. R. 709/08.

2. In all the three petitions judgment under challenge is dated 24-06-08 passed by 1st ASJ, Mandsaur in Cr. A. No. 186/08, whereby the judgment dated 5-5-08 passed by JMFC, Mandsaur in Criminal Case No. 1607/06 whereby the petitioner was convicted under Section 138 of Negotiable Instrument Act (which shall be referred hereinafter as an Act) with imprisonment of one month with fine of Rs. 60,000/-, the present petition has been filed.

3. Particulars of all the three cases are as under :

4. In all the three case the complaint was that petitioner issued a cheque of Rs. 43,000/- and two cheques of Rs. 45,000/-, which were dishonoured upon presentation and the amount was not paid in spite of demand. It was prayed that petitioner be prosecuted under Section 138 of the Act. After taking cognizance and also after framing of charge and recording of evidence, it was found that the petitioner has committed an offence punishable under Section 138 of the Act and petitioner was convicted with an imprisonment of one month and fine of Rs. 60,000/-. out of which Rs. 55,000/- was payable to the respondent. In appeal the sentence awarded by the learned Trial Court was maintained, against which present revision petition has been filed.

5. In all the three cases factual details are as under-

6. Learned Counsel for the petitioner argued at length and submits that petitioner was convicted illegally while petitioner has not committed any offence. Learned counsel further submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in these revision petitions. It is submitted that the learned Courts below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses and the defence of petitioner. It is submitted that petitioner was in jail w.e.f. 24.6.2008. Bail was granted by this Court vide Order dated 17.7.2008 but petitioner could not be released, hence subsequent order was passed by this Court vide Order dated 31.7.2008, in compliance of which petitioner was released on 2.8.2008. It is submitted that petitioner has already completed the jail sentence of more than five weeks.

7. In the matter of Padma Ispat Trading Private Limited v. Pramod Agrawal, 2007(11) MPWN 13, wherein this Court has held that in a case where cheque, returned by Bank with endorsement “signature does not tally” complaint is not maintainable on such ground, as the penal provision are attracted on the ground mentioned under Section 138 of the Act. In the matter of Vinod Tunna v. Zaher Siddiqui, 2003(1) MPLJ 373, wherein cheque was dishonoured as drawer's signature was incomplete, Hon'ble Apex Court held that provisions of Section 138. Negotiable Instruments Act not attrac