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2018 (6) TMI 1088 - HC - Indian LawsOffence u/s 138 of Negotiable Instruments Act, 1881 - revisional jurisdiction under Sections 397 and 401 of Code of Criminal Procedure, 1973 - release of applicant on Bail. Held that:- The Trial Court has taken into account all the aspects. The defence raised by the applicant-accused has been dealt with by assigning reasons. The judgment of the Trial Court also indicate that the Court has scrutinized and appreciated the evidence on record and after giving opportunity to the defence, has held that the applicant-accused is liable to be convicted for the said offence. The Appellate Court has confirmed the judgment of conviction by taking into consideration the evidence on record and the submissions advanced by both the parties. The complainant has examined himself and two other witnesses. The accused has examined himself as a defence witness to contend that the transactions were in the nature of Badla transactions, which are prohibited in law - Admittedly from February1993, the applicant-accused was dealing with the complainant in connection with purchase and sale of shares. The accused has issued cheques in question which were exhibited in evidence vide Exhibits19, 20 and 21. The applicant-accused has admitted that the amount of cheques is due and payable to the complainant. However, the defence of the applicant-accused is that the alleged transactions are forward trading transactions, which are also called as Badla transactions, which were prohibited by Pune Stock Exchange, and therefore, the same are not legally enforceable. In accordance with Section 138 of Negotiable Instruments Act, it shall be presumed unless contrary is proved, that the holder of the cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge in whole or in part of any debt or other liability. In the present case, the complainant has proved that the cheques were issued by the applicant-accused. The said presumption is not rebutted by the applicant-accused in any manner. The applicant-accused had admitted issuance of cheques and that there were outstanding due from him to the complainant in February 1996. The findings of conviction imposed by the Trial Court and confirmed by the Appellate Court, are required to be accepted. While imposing sentence, however, the Trial Court has ordered that the applicant is sentenced to suffer imprisonment for three months and to pay fine of ₹ 10,000/. The sentence of fine was modified by the Appellate Court by maintaining substantive sentence of imprisonment. Criminal Revision Application disposed off.
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