S MOULANA Vs. PRANNATH YADAV

JUDGEMENT

(1.) HEARD the learned Counsel for the petitioner and the learned counsel for the respondent. The petitioner was the accused before the trial court on the basis of a complaint alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act' for brevity). It was the case of the complainant that on 6.8.2005, the petitioner had borrowed a sum of Rs.25,000/-, which was lent to the petitioner vide cheque no.319326, on the assurance of the petitioner that it would be repaid within one month. The accused accordingly issued a cheque bearing No.747527 dated 5.9.2005 for Rs.25,000/-, in favour of the complainant in due repayment of the amount borrowed. When it was presented for realisation, it was dishonoured for want of sufficient funds. On instructions of the petitioner, it was re-presented and it was dishonoured yet again for insufficient funds. It is in this background, after the issuance of a statutory notice, a complaint was filed. The petitioner after having entered appearance, had denied the liability and pleaded not guilty and claimed to be tried. The matter went to trial and upon considering the material evidence and the rival contentions, the court below had held that the complainant had proved the case and convicted the accused for having committed an offence punishable under Section 138 of the NI Act and sentenced to pay a fine of Rs.40,000/- and in default, to undergo simple imprisonment for six months and out of the fine amount, Rs.35,000/- was ordered to be paid to the complainant as compensation. That having been challenged, the same was affirmed by the appellate court. It is that which is under challenge in the present appeal.

(2.) THE learned counsel for the petitioner would seek to take this court through the record, to demonstrate that there was a valid defence on behalf of the petitioner to discharge the burden that arises by virtue of the presumption under Section 139 of the NI Act. Both the courts below have negated and trashed the evidence that has been tendered by the petitioner, which results in a miscarriage of justice. The learned counsel in his endeavour would submit that the several documents executed in favour of the petitioner, such as bond paper that is executed in favour of the complainant having been admitted in the course of evidence, the same is not sought to be explained by the complainant. This would indicate that there was no outstanding legal liability, as for if there was such legal liability, the question of the complainant executing a bond in favour of the petitioner would not arise. And further, having regard to the lease transaction between the complainant and the petitioner, which disclosed that there was no outstanding liability on the part of the petitioner, would clearly establish the circumstance that it was by extortion that the cheque in question had been obtained by the complainant with the assistance of the goonda elements and this aspect of the matter has been negated by the courts below. It is this which the learned counsel for the petitioner endeavours to place before the court with force and therefore would seek to emphasize and reemphasize the evidence in defence that was set up before the courts below.