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TMI Blog2023 (10) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... Court No. 1, Shimla, District Shimla, H.P. (hereinafter referred to as the 'learned trial Court'), in Criminal Case No. 128-3 of 2016, titled as Golf Link Finance and Resorts Pvt. Ltd. vs. Dinesh Kumar. 3. Vide judgment of conviction and order of sentence, referred to above, the learned trial Court has convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'N.I Act') and sentenced him to undergo simple imprisonment for a period of six months and to pay a compensation of Rs. 2,00,000/-. 4. For the sake of convenience, the parties to the present lis, are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court. 5. Brief facts leadings to the filing of the present petition, before this Court, may be summed up, as under:- 5.1. Complainant Golf Link Finance and Resorts Private Limited has filed a complaint under Section 138 read with Section 142 of the N.I. Act against accused Dinesh Kumar, on the ground, that accused, for lawful and valuable consideration, has issued a cheque No. 260921 dated 10.06.2016 for a sum of Rs. 1,46,400/-drawn at UCO Bank, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said judgment, the present revision petition has been filed before this Court, challenging the judgment of conviction and order of sentence, as affirmed by the learned First Appellate Court, mainly, on the ground, that the judgment of conviction and order of sentence is based on surmises and conjectures, as the law involved in the case and the evidence adduced, has not been properly considered by the learned trial Court, as well as, the learned First Appellate Court. 13. Disputing his liability, it is the case of the petitioner that the learned trial Court has wrongly drawn the presumption under Section 118 of the N.I. Act, against the accused, without any evidence on record. 14. The findings have further been assailed on the ground that the learned trial Court has failed to consider the fact that the complainant could not prove its case against the accused beyond any shadow of doubt, whereas, the evidence adduced by the accused has not been considered properly. According to the petitioner, the accused has to probabilise his case on the touchstone of the preponderance of probabilities. 15. Elaborating his stand, it the case of the accused that the learned trial Court has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal notice Ext. CW-1/L was issued which was forwarded to the accused through registered post. Postal receipts in this regard, are Ext. CW-1/M and Ext. CW-1/N. Notice, according to this witness, was served on the accused on 17.06.2016 and acknowledgment in this regard is Ext. CW-1/P. The statement of account of the accused is Ext. CW-1/Q. 20. Lastly, he has deposed that despite notice, the accused has not made the payment of the cheque. 21. According to his cross-examination, the copy of proceedings, which were conducted in the general meeting held at Dhalli is Ext. CW-1/C. At the time of sanctioning the loan, they used to take address proof, salary slip, guarantor and photo of the loanee. However, he does not remember as to who is guarantor, in this case, nor, he could disclose about the educational qualification of the loanee. Ext. CW-1/F was executed at Dhalli and the same was witnessed by Om Prakash, who is employee of the company. This witness has admitted that in legal notice, there is no reference with regard to re-payment made by the loanee. This witness has further admitted that Sumitra of their company is facing 8-10 trial in 138 cases and except that no other criminal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir bank, bearing account No. 05640110027424. He has proved the copy in this regard as Ext. DW-4/A. According to the statement of account, on 19.10.2015, a sum of Rs. 1,00,000/-was transferred in his account. On 22.09.2015, vide cheque No. 113002, a sum of Rs. 60,000/-was transferred in his account. 26. This is the entire evidence led by the parties. 27. Firstly, coming to the fact that complainant by examining CW-1 has proved the demand promissory note Ext. CW-1/D, in which, it has been mentioned that Rs. 1,60,000/-has been obtained by accused Dinesh Kumar. The said amount was received vide Cheque Nos. 113001 and 113002 dated 22.09.2015. Ext. CW-1/F is the agreement for loan. The cheque is Ext. CW-1/G, which was issued on 10.06.2016 for a sum of Rs. 1,46,400/-in favour of the complainant. The said cheque was not encashed and the same was returned back vide memo Ext. CW-1/J. Reason for non-encashment, as has been mentioned in the memo, is that the person, who has issued the cheque, was not having the sufficient balance, in his account. The cheque return memo was issued on 13.06.2016, whereas, the requisite notice was given on 16.06.2016. The said notice was sent to the accused v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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