I.B. ENTERPRISES Vs. KONARK SUPPLY AGENCY

JUDGEMENT

(1.) This revision under Section 401 of the Cr. P.C. has come to be filed by the petitioner seeking to challenge the judgment dated 05.04.2008 passed by the learned Additional Sessions Judge, Rourkela in Criminal Appeal No.15 of 2006 affirming the conviction and sentence passed by the learned S.D.J.M., Panposh, Rourkela in 1CC No.58 of 2004 directing the petitioner to undergo S.I. for a period of two years and to pay compensation of Rs.4,20,000/- to the complainant and in default of compensation amount, to undergo S.I. for a further period of three months for the offence under Section 138 of the N.I. Act.

(2.) It is asserted on behalf of the petitioner that the court below failed to appreciate that the cheque that had been issued by the petitioner had been given by way of advance for supply of materials and without supplying the materials, the same was utilize by the opposite party-complainant with an oblique motive and the complainant was, therefore, not entitled to encash the cheque in question nor was the petitioner liable to the opposite partycomplainant in any manner. The complainant and opposite party entered appearance through counsel and submitted that the complainant-opposite party was the dealer of L & T cement and carrying on business in Rourkela for supply of cement. The petitioner purchased cement on credit basis on different dates, which was supplied on good faith and the complainant made repeated demands for clearance of the outstanding. The petitioner avoided discharging his liability on various pretexts and ultimately on 23.02.2004 issued a cheque for Rs.4,00,000/- in favour of the opposite partycomplainant. When the cheque was produced for encashment, the same was dis-honored due to "insufficiency of fund". Thereafter, necessary demand notice was issued to the petitioner through advocate on 28.02.2004 which was duly received by him on 01.03.2004 and in spite of receipt of the notice since the petitioner did not comply nor reply to the notice, the opposite partycomplainant initiated 1CC case in the court of learned S.D.J.M., Panposh.

(3.) Learned counsel for the petitioner placed reliance on a judgment of the Hon'ble Supreme Court in the case of P. Venugopal V. Madan P. Sarathi, 2009 42 OCR 217, in which the Hon'ble Supreme Court held that the initial burden of proving that the cheque was issued for discharge of any debt or liability is on the complainant and the presumption raised under Section 139 of the Act in favour of the holder of the cheque "does not extend to the extent that the cheque was issued for the discharge of any debt or liability which is required to be proved and it is essentially a question of fact".