Once a cheque signature is admitted, statutory presumptions of liability arise. Revisional courts should not interfere with factual findings absent perversity. In financial disputes, settlement and payment of compensation justify the discretionary grant of probation to prioritize restorative justice over incarceration.

JUDGMENT :

HASMUKH D. SUTHAR, J.

1) By way of present revision application under Sections 397 read with 401 of the Code of Criminal Procedure, 1973, the applicant has prayed for quashing and setting aside the judgment and order of conviction and sentence dated 05.11.2007 passed by the learned Judicial Magistrate First Class, Unjha, in Criminal Case No.968 of 2004, whereby, the trial Court has been pleased to hold the applicant guilty for the offence punishable under Section 138 of the Negotiable Instruments Act (which shall hereinafter be referred to as “NI Act” for short) and sentenced to undergo simple imprisonment of one year along with fine of Rs.5,000/- failing which to undergo further three months simple imprisonment and also directed to pay Rs.5,67,500/- as compensation to the complainant. The said order was assailed by way of filing Criminal Appeal No.96 of 2007, wherein, vide order dated 07.03.2008 passed by the learned Sessions Judge, Mehsana at Visnagar, the appeal came to be dismissed and the order of conviction and sentence has been confirmed. Hence, the present Revision Application is filed by the applicant-accused.

2) Brief facts of the case is that, the complainant is residing at village Kahoda, Taluka Unjha and is an agriculturist and also doing business, whereas the applicant is serving in Nova Company. The applicant used to come often to the shop of the complainant and in July, 2004, the applicant informed the complainant that he is required to pay Rs.6 lacs to one person within two days, but he does not have money. Therefore, the complainant gave Rs.5,67,500/- to the applicant, who assured to return the said amount within a month. Thereafter, as the said amount was not repaid by the applicant and upon demanding money back by the complainant, the applicant had given a cheque of Rs.5,67,500/- to the complainant with an assurance that it would be honored. Thereafter, the complainant deposited the said cheque in his bank on 20.10.2004. and on 29.10.2004, the said cheque was dishonoured for want of sufficient funds. The complainant therefore, served the petitioner - accused with notice through his advocate dated 03.11.2004 by Registered A.D. post and by U.P.C. The notice was served upon the petitioner, however, the applicant did not repay the amount. A complaint came to be registered under section 138 of the NI Act before learned JMFC Court, in which the applicant was convicted. The said conviction was challenged before the learned Sessions Court, Mahesana, by filing Criminal Appeal No.96/2007, which came to be dismissed vide order dated 07.03.2008.

3) Learned Advocate for the applicant has submitted that both the courts below have erred in not considering the fact that the complainant has come with a case as per the complaint that he gave Rs.5,67,500/- from the house whereas, in the deposition he has stated on oath that he withdrew the said amount from the Bank. This major contradiction in the oral as well as in the written complaint goes to the root of the case and raises serious doubt about the veracity of the complaint. Further, learned courts below have also erred in not considering the fact that there is not an iota of evidence on the record to show, suggest or establish that the complainant was having with him such a large amount of Rs.5,67,500/- at his residence at the relevant time nor there is any evidence to show that he withdrew the said amount from the Bank. In su