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TMI Blog2017 (1) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2014 passed in Criminal Case (New) No.41903 of 2007, whereby the respondent No.1 was convicted for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 and sentenced to undergo six months simple imprisonment and fine of Rs. 70,000/-, in default, further simple imprisonment of one month. Further, directed to pay compensation of Rs. 57,000/- to the complainant, out of fine amount of Rs. 70,000/-. 2. Brief facts of the case are that the applicant contended that respondent-accused get the money from the present applicant for handy cash on credit sum amount of Rs. 1.20 lacs on 21.03.2006. He further submitted that after numbers of request and demand, the respondent-accused gave four cheques of Canara Bank of Baragen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.2014. Hence, this revision application. 3. Heard Mr. Sandip Patel, learned advocate for the applicant, Mr. Shushil Shukla, learned advocate for respondent No.1 and Ms.Monali Bhatt, learned Additional Prosecutor for respondent No.2. 4. Mr. Patel, contended that the judgment and order of acquittal passed by the learned trial Court is absolutely illegal, unreasonable, perverse and against the law and evidence on record. He then contended that signature on the cheque is not in dispute and the amount given by the applicant to the respondent-accused as a partner. He then contended that the learned trial Judge has wrongly considered that legal dues and transactions are not proved beyond reasonable doubt. The ingredients of Section 138 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clearly proved that evidence in respect of list at exhibit no. 54 (exhibit no. 39 to 50) was in the possession of the complainant. It was not lost or missing. He has not stated in the complaint, notice and affidavit that there is a voucher in respect of lending of money on 21/03/2006. He has not stated that the money was given in instalment on different dates and facts contained in the documents from exhibit no. 39 to 50 have not been mentioned in the complaint, notice and affidavit. There is no document showing alleged amount of Rs. 1,30,000/- in the exhibit no. 39. He has also admitted that it has not been mentioned in the documents at exhibit no. 39 to exhibit no. 51 that accused has borrowed money. The Defence has raised clear questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/06/2004 and accused has not given cheque at exhibit no. 16 to the complainant towards the aforesaid amount. Looking to this, transaction mentioned in the complaint and voucher of exhibit no. 50 are different transaction matters. It is not consistent with complaint. The complainant has not stated anywhere in the complaint, notice or affidavit that when Rs. 1,20,000/- was lent, accused gave voucher bearing his signature. As discussed above, it has been mentioned in the voucher that amount was given through cheque wherein it has been mentioned with different ball-pen that money was lent in cash. Under these circumstances, aforesaid voucher clearly creates doubt. The accused has not stated as to in whose presence, on which date and time, Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It is not proved that accused legally owes something to the complainant. The learned Magistrate has erred in evaluation of evidence of the complainant. The Prosecution has not proved that the aforesaid cheque was given for legal debt. It has been established that accused is required to give evidence to rebut presumption u/s 139. The presumption can be rebutted with the facts and through cross examination of complainant. It is revealed in the present case that rebuttal of section 139 is done through cross examination. The complainant has not proved that he received the said cheque towards legal debt. Looking to the cheque of exhibit no. 16, the person issuing the said cheque has put signature in Hindi, whereas name, amount, figure and dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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