J U D G M E N T

By way of this petition, the petitioner has challenged judgment dated 28.06.2018, passed by the Court of learned Judicial Magistrate, 1st Class, Court No. 2, Paonta Sahib, District Sirmaur, H.P. in Criminal Complaint No. 157/3 of 2014, titled as Mam Raj Kapoor Vs. Arjun Singh, in terms whereof, the petitioner was convicted for commission of offence punishable under Section 138 of the Negotiable Instruments Act as well as judgment dated 09.05.2019, passed by the Court of learned Additional Sessions Judge, Sirmaur District at Nahan, H.P., passed in Criminal Appeal CIS Case No. 69/2018, titled as Arjun Singh Vs. Mam Raj Kapoor, in terms whereof, the appeal preferred by the present petitioner against the judgment of conviction passed by the learned Trial Court, was dismissed.

2. Brief facts necessary for the adjudication of the present revision petition are as under:-

Respondent-complainant initiated proceedings under Section

138 of the Negotiable Instruments Act against the petitioner/accused on the ground that the complainant had advanced a loan of Rs.2,00,000/- to the accused in lieu of cordial relations between the complainant and the accused and in order to discharge the said liability, a post dated cheque bearing No. 001042, dated 31.01.2014 for an amount of Rs.2,00,000/- drawn upon SBI (ADB) Paonta Sahib was issued by the accused in favour of the complainant. According to the complainant, when he presented the said cheque for encashment with his Banker, i.e., H.P. State Co-operative Bank Ltd., Paonta Sahib, the same was returned alongwith Memo dated 13.02.2014 as dishonoured on account of “Insufficient Funds.” Thereafter, the complainant issued a statutory demand notice on 05.03.2014 through registered post on 06.03.2014, calling upon the accused to make good the demand, but as despite issuance of notice, accused did not make the payment, therefore, the complaint was filed.

3. The defence taken by the accused was that the complainant neither had the capacity to loan an amount of Rs.2,00,000/- nor any statutory notice, as claimed by the complainant, was ever served upon the complainant.

4. On the basis of the pleadings as well as the evidence which was led by the complainant to prove his case, the complaint was allowed by the learned Trial Court by holding that the accused had violated Section 138 of the Negotiable Instruments Act, 1881. While arriving at the said findings, it was held by the learned Trial Court that the complainant had proved his case by entering into the witness box as CW-1 and placing on record the cheque issued by the accused Ex.CW-1/A, Return Memo of SBI Ex.CW-1/B, Return Memo of H.P. State Co-operative Bank Ex. CW- 1/C, Legal Notice issued to the accused Ex.CW-1/D, Postal Receipt Ex. CW-1/E and Report of Postman on registered letter Ex. CW-1/F. Learned Trial Court also held that in his statement so recorded under Section 313 of the Criminal Procedure Code, the defence taken by the accused was that he had only taken a sum of Rs.50,000 from the complainant and in lieu thereof, he issued a blank signed cheque as security and the complainant misused the same by filing the complaint. However, he did not enter into the witness box to substantiate his contention, therefore, whatever was stated under Section 313 of the Criminal Procedure Code could not be read as part of the evidence. On these basis, learned Trial Court held that as the signatures upon the cheque were admitted by the accused, therefore, the presumption under Section 139 of the Negotiable Instruments Act was also attracted. With regard to the contention of the accused that the complainant was in the business of money lending, learned Trial Court held that there was no evidence on record to suggest that the complainant was indulging in such like activity. On these basis, learned Trial Court allowed the complaint and convicted the accused for committing an offence punishable under Section 138 of the Negotiable Instruments Act. Learne