LAXMI NARAIN S/O VISHNU JOSHI, R/O NEAR SHARMA HOSPITAL, KANKROLI, DISTT. RAJSAMAND Vs. ANIL KUMAR S/O AMBA LAL PALIWAL R/O VILLAGE JAWAD, DISTT. RAJSAMAND

JUDGEMENT

(1.) - Instant revision petition has been filed against the judgment dated 19.01.2016 passed by learned Sessions Judge, Rajsamand in Criminal Appeal No. 77/2013 whereby, he dismissed the appeal filed by the petitioner and affirmed the judgment dated 07.06.2013 passed by the learned Judicial Magistrate (First Class), Rajsamand by which the petitioner has been convicted under Sec. 138 of Negotiable Instrument Act & 357 Penal Code and sentenced him to two years simple imprisonment and imposed fine of Rs. 10,00,000.00 and in default of payment of fine, to undergo six months S.I.

(2.) As per brief facts of the case, the complainant respondent filed a complaint against the petitioner that he had advanced a loan of Rs. 5,00,000.00 to the petitioner and the petitioner gave him cheque NO. 601241 on dated 01.09.2007 towards the loan amount. It was alleged in the complaint that when the amount was not paid, the complainant presented the cheque to the bank on 12.11.2007 and same was dishonoured with the endorsement 'returned due to insufficient funds'. Despite the service of the statutory notice, the payment was not made to the complainant respondent. The learned trial court took cognizance of the offence under Sec. 138 of the Act against the petitioner and vide judgment dated 07.6.2013, the trial court held the petitioner guilty for the offence under section 138 of the Act, and convicted and sentenced him, as mentioned above. The petitioner preferred an appeal against the order of conviction before the appellate court, however, vide judgment dated 19.01.2016, the appeal filed by the petitioner was dismissed. Hence, the present revision petition.

(3.) Learned counsel for the petitioner argued that the mandatory provisions of the N.I act have not been complied with and there is nothing on record to show that cheque has been given in lieu of borrowed money. It is further argued that complainant stated that he has shown the borrowed amount of Rs. 5,00,000.00 in the balance sheet but he could not produce the same. Further it was the specific case of the petitioner that seven-eight cheques had fallen in between the way from Kankroli to Udaipur and the complainant has misused the lost/missing cheque and the burden of proof that the cheque was issued towards borrowed amount was upon the complainant but the learned trial court has committed an error in arriving at the finding that petitioner has given the cheque against legal liability. Learned counsel for the petitioner further argued that the date on which the loan was advanced has not been mentioned in the complaint by the complainant and therefore, the complainant has miserably failed to prove his case that the cheque was issued towards discharge of lawful debt. He placed reliance on the judgment of Honourable Apex Court in the case of Vijay Vs. Laxman & anr. Reported in 2013 Cr.L.R (SC) 277 .