HIGH COURT OF CHHATTISGARH, BILASPUR CRR No. 464 of 2015 Dinesh Kumar Applicant Versus Champeshwar Sahu & Another Respondent _________________________________________________

Post for pronouncement of the order on 20.09.2019 JUDGE

20.09.2019 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Order Reserved on : 30.07.2019 Order Delivered on : 20/09/2019 CRR No. 464 of 2015 • Dinesh Kumar S/o Siyaram Dewangan Aged About 46 Years R/o Jaamgaon, Police Station Ranchirai, Tahsil Patan And District Durg, Chhattisgarh, ---- Applicant Versus • Champeshwar Sahu And Anr. S/o Jeevdhan Sahu Aged About

46 Years R/o Marfat Ramesh Kumar Rathi, Rathi Tambaku, Ganjpara Durg, Tahsil And District Durg, Chhattisgarh, • State Of Chhattisgarh Through District Magistrate Durg, District Durg, Chhattisgarh ---- Respondents For Applicant : Shri Praveen Dhurander, Advocate For Respondent No.1 : Shri Shikhar Bakhtiyar, Advocate For Respondent No.2/State : Shri I.Lakra, Dy.GA

C A V Order

20/09/2019 Present revision arises out of impugned judgment of conviction and order of sentence dated 05.06.2015 passed by the Fourth Additional Sessions Judge, Durg in Cr.A. No. 235/2014 whereby the learned appellate court below has confirmed the conviction and sentence of the accused/applicant as awarded by the learned Judicial Magistrate First Class. Durg in Complaint Case No. 314/2012 vide its judgment dated 24.07.2014 and altered the sentence under Section

138 of the Negotiable Instrument Act and sentenced him to undergo SI for one year with compensation of Rs. 7,70,000/- plus default stipulation.

3. Brief facts of the case are that the complainant filed a complaint case against the applicant/accused alleging offence under Section 138 of the Negotiable Instrument Act which was registered as complaint case No. 314/2012. As per allegation, case of the prosecution is that the complainant/accused was working as agent in different companies and the complainant had given Rs. 6,00,000/- to the applicant for depositing in various schemes and when the complainant sought documents with regard to the above investment, no document was provided by the applicant. Hence, the complainant sought for his amount of Rs. 6,50,000/- back from the applicant/accused and to satisfy the complainant, applicant gave blank cheque which was dishonoured by the Bank. A complaint case was filed against the applicant/accused before the Judicial Magistrate First Class, Durg.

4. So as to prove the guilt of the accused/applicant, the complainant has examined one witness. Statement of the accused/applicant was also recorded under Section 313 Cr.P.C in which he denied the charges levelled against him and pleaded his innocence and false implication in the case and examined two defence witnesses.

5. After hearing the parties, vide impugned judgment of conviction and order of sentence dated 24.07.2014, learned Judicial Magistrate First Class has convicted the accused/applicant for the offence under Section 138 of the Negotiable Instruments Act and sentenced him to undergo SI for one year and to pay compensation of Rs. 7,70,000/- with default stipulation. This order was appealed by the applicant and in appeal, learned appellate court confirmed the conviction and sentence of the applicant. Hence, the present revision.

6. Counsel for the applicant submits that the lower appellate court and trial court has erred in law as well as in facts in convicting and sentencing the applicant under Section 138 of the Negotiable Instruments Act. Both the courts below have misconceived the law involved in the case and wrongly appreciated the evidence on record. The complainant has not proved the compliance of provisions of Section 138 of the Negotiable Instruments Act. Hence, the applicant has wrongly been convicted. He submits that the blank cheque was admittedly given with a purpose of security and it has not been pleaded and proved by evidence as to when the cheque was given so the impugned judgment of conviction and order of sentence is i