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TMI Blog2019 (1) TMI 1495X X X X Extracts X X X X X X X X Extracts X X X X ..... n 139 of the Act. Thus, the evidence is short of proving that there exists a legally enforceable debt or liability for which the applicant/accused has given the said cheque. There was no reason for the applicant/accused to issue a cheque of his personal liability in the capacity as a Proprietor of Hindustan Traders. The complainant has not bothered to explain the same. Thus, the applicant/accused is entitled for the benefit of doubt. Criminal Revision Application is allowed. - CRIMINAL REVISION APPLICATION NO.176 OF 2005 - - - Dated:- 24-1-2019 - V.K. JADHAV, J. Advocate for Applicant: Mr. S.P. Sonpawale APP for Respondent : Mr. A.P. Basarkar Advocate for Respondent 2 : Mr N G Kale PER COURT : 1. The applicant/original accused has preferred this Criminal Revision Application against the Judgment and order of conviction passed by the 7th Judicial Magistrate First Class, Aurangabad under section 138 of the Negotiable Instruments Act and confirmed by the Ad hoc Additional Sessions Judge, Aurangabad in Criminal Appeal No.65 of 2003. 2. Brief facts of the case are as follows : a] According to the complainant, he is having cordial relations with the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in default to suffer S.I. for 7 days. Aggrieved by the same, the applicant/accused preferred Criminal appeal No.65/2003 and the learned Adhoc Additional Sessions Judge, Aurangabad by judgment and order dated 3.12.2004 dismissed the said appeal. Hence, this Criminal Revision Application. 3. The learned counsel for the applicant/accused submits that, the applicant/accused is a Director of Shayona Paper Pulp Conversion Mills Pvt Ltd. The same is not disputed by the complainant. It is also not disputed that the complainant was supplying paper scrap to the above said company. Learned counsels submits that in such a business relations with the complainant, there was no reason for the applicant/accused to secure hand loan of huge amount of ₹ 50,000/ from the complainant. The learned counsel submits that, the complainant has admitted in his cross -examination that he was transacting the business with the said company of which the applicant/accused is one of the Directors. The complainant has also admitted in his cross -examination that at about 20.8.2001 accused met him in the company and the complainant had asked the applicant/accused for the payment in respect of supplying of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Instruments Act and convicted the applicant/accused under section 138 of the N.I. Act. Both the Courts below have taken a very lenient view and the applicant/accused came to be convicted to suffer SI till rising of the Court and to pay a fine of ₹ 1,000/ , in default to suffer SI for seven days. Learned counsel submits that, there is no substance in this Criminal Revision Application. Criminal Revision Application is thus liable to be dismissed. 6. It appears from the allegations made in the complaint and also from the admissions given by the complainant in his cross -examination that there were business relations between the complainant and the applicant/accused. The complainant was trading in scrap papers and he was supplying paper scrap to the company of which the applicant/accused is one of the Directors. It is difficult to accept that for expansion of the business, the complainant has given huge amount of ₹ 50,000/ in cash to the applicant/accused as a hand loan when the applicant/accused was one of the Directors of the said company and not the sole Proprietor. The complainant has also admitted in his cross -examination that many times he has received the payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, in our considered view, the cheque cannot be held to have been drawn for an exiting debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability. (Emphasis supplied). 8. In paragraph no.17 this Court has made following observations : 17. There cannot be any manner of dispute with the proposition that once the presumption arising under section 118 read with section 139 of the Act is raised, it can be rebutted by the accused on preponderance of probability at the trial. This can be done on the basis of cross-examination of the complainant and his witnesses, if any, and/ or by leading independent defence evidence. In a given case, the accused can also show on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant for withdrawal of the said amount. It is not clear as to what happened during the pendency of the appeal and after the disposal of the appeal about said amount. If the said amount is not withdrawn by the complainant, the amount if any still lying in the Court the same shall be paid to the applicant/accused and in case, if the amount is withdrawn by the complainant on execution of the Bond, or otherwise/ (undertaking), then the applicant/accused may execute the said bond/undertaking. The applicant/accused is entitled for the amount even if it is withdrawn by the complainant. The complainant is liable to pay the said amount to the applicant/accused. Thus, the applicant/accused may initiate appropriate proceedings in the Trial Court. Hence, following order. O R D E R 1. Criminal Revision Application is hereby allowed. 2. The Judgment and order of conviction passed by the 7th Judicial Magistrate First Class, Aurangabad dated 22.5.2003 in SCC No.768 of 2002 under section 138 of Negotiable Instruments Act sentencing thereby the applicant/accused to suffer S.I. till rising of the Court and to pay fine of ₹ 1,000/ in default to suffer S.I. for seven days, and said ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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