ORDER

1. The applicant/accused has preferred this revision petition against judgment dated 6.9.2018 passed by Second Additional Sessions Judge, Shajapur in Criminal Appeal No. 13/2018, whereby the judgment of conviction passed by the learned Judicial Magistrate, First Class, Shajapur in Criminal Case No. 1628/2013 has been upheld, by which the applicant has been convicted for commission of offence punishable under section 138 of the Negotiable Instruments Act, 1881 and he has been sentenced to undergo 3 months SI and he is also directed to pay compensation of Rs. 2.50 lacs to the respondent/complainant under section 357(3) of the CrPC.

2. Brief facts of the case are that respondent/complainant filed a private complaint against the applicant for commission of offence punishable under section 138 of the Negotiable Instruments Act, 1881 alleging that the applicant for his personal need had required a sum of Rs. 2.20 Lacs, which he demanded from the complainant. On 15.5.2013, complainant has paid the aforesaid amount before the witnesses and on the same date an agreement was also executed on a Rs. 100/- stamp paper, in which it was agreed between them that the said amount is paid for a period till 15.7.2013. When the complainant demanded the said loan amount, then applicant issued a cheque No. 021451 dated 7.8.2013 amounting to Rs. 2.0 Lacs in favour of the complainant. The said cheque was presented by the complainant for encashment but the same was return unpaid due to "insufficient funds". Thereafter, the complainant served upon statutory legal notice to the applicant but the applicant did not pay the cheque amount to the complainant.

3. The trial Court after considering the evidence adduced by the parties, convicted the applicant for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo 3 months SI and also imposed compensation to be paid to the complainant to the tune of Rs. 2.50 Lacs under section 357(3) of the CrPC Feeling aggrieved with the impugned judgment passed by Judicial Magistrate, First Class, Shajapur, the applicant had preferred Criminal Appeal No. 13/2018 before the Sessions Court and learned Second Additional Sessions Judge, Shajapur vide impugned judgment dated 6.9.2018 affirmed the judgment passed by the JMFC, Shajapur. Being dissatisfied with the impugned judgment, the applicant has preferred instant revision petition before this Court.

4. Learned counsel for the applicant submits that the applicant/accused successfully rebutted the presumption under section 139 of the Negotiable Instruments Act, 1881 and has raised probable defence. The applicant has questioned the financial capacity of the complainant and without there being any proof of financial capacity, the Courts below erred in convicting the applicant for the alleged offence. Learned counsel for the applicant placed reliance in the judgment of Hon'ble apex Court in the case of Dilip S. Dhanukar v. Kotak Mahindra Co. Ltd., (2007) 6 SCC 528.

5. On the other hand, learned counsel for the respondent/complainant refuting the submissions of the learned counsel for the applicant contends that signature on the cheque having been admitted by the applicant, thus, a presumption has rightly been raised that cheque was given in discharge of a debt of liability. The applicant has not been able to prove any probable defence and the Courts below have rightly convicted the applicant for the alleged offence. No case was taken by the applicant that complainant has no other source of income to advanced loan to the applicant. Hence, he prayed for rejection of the petition..

6. I have considered the rival contentions advanced by the learned counsel for the parties and perused the records.

7. Complainant-Pankaj Sharma (PW1) stated in examination in chief that loan amount of Rs. 2.20 Lacs was given to the applicant and for discharge of the same, the applicant issued cheque No. 021451 dated 7.8.2013 in favour of the compl