VIKRAM SINGH AANJANA Vs. PRAKASHCHANDRA SOLANKI

JUDGEMENT

(1.) The present revision is filed under Sec. 397/401 of Cr.P.C. The applicant has been convicted under Sec. 138 of Negotiable Instruments Act (in short 'the N.I. Act') and sentenced to undergo RI for 1 year and to deposit Rs.20,50,730.00 as compensation with default stipulation vide judgment dtd. 9/6/2022 passed by IX ASJ, Ujjain in Criminal Appeal No. 90/2021 affirming the judgment dtd. 29/9/2021 passed by JMFC, Ujjain in complaint case No. 590/2012.

(2.) The judgment of conviction and sentence has been challenged mainly on the ground that complainant has failed to prove the transaction between the complainant and the accused. Thus he could not establish existence of legally recoverable debt or other liability in order to establish offence under Sec. 138 of N.I. Act. It is also submitted that in regard to payment of amount, there are material contradictions in the complaint, cross-examination of complainant and other witnesses to establish transaction between the parties. It is also submitted that both the courts have convicted the applicant only on the ground of presumption under Sec. 139 of N.I. Act without considering that complainant has failed to prove the existence of legally recoverable debt or liability. He argued that though provision of Sec. 118 and 139 of N.I. Act provides for presumption in favour of cheque holder, still the burden is on the complainant to establish the transaction and existence of legally recoverable debt or liability. In support of his submission, he has placed reliance on the following judgments - M.S. Narayana Menon @ Mani Vs. State of Kerala and another, AIR 2006 SC 3366, Krishna Janardhan Bhat Vs. Dattatraya G.Hegde, (2008) 4 SCC 54, Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513 and also the judgment passed by this Court in the case of Pankaj Vs. Anil Kumar Jain, 2009(2) DCR 730. He also relied on the judgment passed by Apex Court in the case of Ramdas Vs. Krishnjanand, 2014(3) DCR 774. Learned counsel for applicant relying on the judgment of Krishan Janardhan Bhat Vs. Dattatraya G. Hegde A.I.R. 2008 SC 1325 contends that Sec. 139 of Negotiable Instrument Act provides for presumption of debt or other liability in favour of holder of a cheque. There is no presumption with regard to existence of legally recoverable debt or other liability, therefore, in order to establish offence under Sec. 138 of Negotiable Instrument Act, the complainant has to prove the existence of legally recoverable debt or liability beyond doubt. He further submits that in case of Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 the Supreme Court examined the application of above mentioned statutory presumptions and laid down :

(3.) Per contra, counsel for the respondent submitted that both the courts have meticulously considered the entire oral and documentary evidence and thereafter found that there is existence of legally recoverable debt and since the applicant had chosen not to adduce any evidence in rebuttal of presumption under Sec. 118 and 139 of N.I. Act, convicted the applicant. The concurrent findings have been recorded by both the courts below and no interference is called for in exercise of revisional jurisdiction.