KAMRUDDIN ALI Vs. CITI FINANCIAL AND ORS.

JUDGEMENT

(1.) Hon'ble Mr. Justice M.L. Mehta.

(2.) THIS Criminal Revision petition U/s 397 Cr.P.C. is against the judgment and order dated 19.5.2012 of Learned ASJ whereby appeal against the judgment 29.10.2011 and order on sentence dated 15.11.2011 of the Learned M.M. in the complaint U/s 138 N.I. Act against the petitioner, was dismissed. Vide judgment dated 29.10.2011 the petitioner was convicted U/s 138 N.I. Act and vide order dated 15.11.2011 he was sentenced to undergo SI for a period of six months and to pay the compensation of Rs. 1,20,000/ - to the complainant and in default to further undergo SI for three months. In the complaint that was filed against the petitioner U/s 138 N.I. Act, the allegations are that he had vide agreement and in partial discharge of his liability issued a cheque for a sum of Rs. 1,20,000/ - in favour of the respondent on 23.12.2009 and the said cheque on presentation got dishonoured on account of "insufficiency of funds" and further that he failed to pay the said amount despite notice of demand dated 15.1.2010. The Learned M.M. decided the complaint on under mentioned two issues: -

(3.) WITH regard to the second issue, it was noted that there was no dispute that the petitioner had availed a loan of Rs. 1,20,000/ - from the respondent company which was payable by him in 48 EMIs of Rs. 4000/ - per month. It was also not in dispute that the petitioner had made payment of nine EMIs. The defence that was taken by the petitioner was that the cheque in question allegedly given by him was blank and given as a security for taking loan from the complainant/respondent. The Learned M.M. recorded the finding of presumption U/s 139 and Section 118 (a) of the N.I.Act in favour of the complainant/respondent, which the petitioner having failed to prove even by the standard of preponderance of probabilities, he resultantly recorded conviction against him.