H R CONSTRUCTION Vs. SHRI RAM PRASAD SONI

JUDGEMENT

(1.) By this revision under Section 397 read with Section 401 of the Criminal Procedure Code , the applicant has challenged legality & propriety of the judgment dated 31-7-2006 passed by the 8th Additional Sessions Judge (FTC), Raipur in Criminal Appeal No. 66/2006, whereby while affirming the judgment of conviction, order of sentence and order of payment of compensation, dated 28-3-2006 passed by the Judicial Magistrate First Class, Raipur in Criminal Complaint Case No. 550/2006 relating to one cheque, learned Additional Sessions Judge has held that the non-applicant is not guilty for commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (for short the Act) relating to two cheques on the ground that they were taken as advance.

(2.) I have heard learned counsel for the parties, perused the judgments and records of the Courts below.

(3.) As per undisputed facts of the case, three cheques were issued by the non- applicant to the applicant viz., Exs. P-1, P-2, & P-3. Complaint under Section 138 of the Act was filed against the non-applicant for dishonour of three cheques. The applicant has examined himself in support of his complaint and in his detailed evidence he has deposed that the non-applicant has issued three cheques Exs. P-1, P-2 & P-3 which have been subsequently dishonoured. But in para 13 of his cross-examination he has admitted that he has given in writing to the non-applicant relating to two cheques Exs. P-2 & P-3 that he has taken those cheques as advance. Relying on the aforesaid evidence of the applicant, the 8th Additional Sessions Judge (FTC), Raipur has held that the non- applicant is not guilty for commission of offence under Section 138 of the Act relating to the aforesaid two cheques Exs. P-2 & P-3 and that the non- applicant is guilty for commission of offence under Section 138 of the Act relating to one cheque Ex. P-1 and sentenced the non-applicant to pay fine of Rs. 4,000/- & compensation of Rs. 30,000/- relating to the amount of cheque.