RAJ KUMAR BHATI Vs. SHER SINGH SAINI

JUDGEMENT

(1.) THIS criminal revision petition under Section 397/401 Cr.P.C has been preferred by the petitioners against an order dated 22nd February, 2010 passed by learned first appellate court dismissing the appeal of the petitioners against conviction handed out to them in a case under Section 138 of Negotiable Instruments Act.

(2.) THE petitioners number 1 and 2 are the directors of a private limited company (petitioner no.3 herein). THE facts reveal that petitioner no.3 had taken a loan of Rs.5 lac under a written agreement from the complainant and issued post-dated cheques for repayment of the loan and also issued cheques on account of interest. THE cheques issued by the petitioners for repayment of loan got dishonoured when they were put by the complainant to the bank. THE complainant served a notice on the petitioners and the petitioners replied that they have paid back the loan. THE complainant who had not received the loan amount nor payment against dishonoured cheques filed a complaint under Section 138 of Negotiable Instruments Act. THE dishonour of the cheques was not denied by the petitioners. THE plea taken by the petitioners was that the loan was paid in cash in 2004. However, in order to prove this defence, no evidence was adduced except oral statement of the accused. THE balance sheet of the company for the year 2003-04 admittedly showed the loan paid by the complainant as debit and the liability of the company. THE plea taken by the accused that the loan was paid in cash without obtaining receipt was rightly disbelieved by the trial court and the trial court convicted the petitioners. In appeal, the appellate court also came to same conclusion after re- appreciating the entire evidence that the petitioners were guilty of offence under Section 138 of NI Act and were rightly convicted since the defence taken by the petitioners was a farce. In the present petition, the petitioners have assailed the order of the learned trial court as well as first appellate court on merits alleging that the judgment passed by the appellate court and the trial court was based on surmises and conjectures and it suffered from many infirmities. THE stand taken is that the cheques were issued as security. It is submitted by the counsel for the petitioners that the agreement under which the loan was taken provided that the petitioners had a right to recover the loan from the assets of the petitioners. THErefore, the cheques were given only as a security.