- (1.)BEING aggrieved by the judgment dated 30/06/2009 passed by VIII ASJ, Indore in criminal appeal No. 173/2009 whereby judgment dated 09/03/2009 passed by JMFC, Indore in criminal case No. 138/2006 whereby the petitioner was convicted for the offence punishable under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as "NI Act") by sentencing him to undergo one year imprisonment with fine of Rs.5,000/-, was maintained, the present revision petition has been filed.
(2.)SHORT facts of the case are that respondent filed a private complaint under Section 138 of NI Act alleging that the petitioner is doing the business in the name and style of M/s Krishna Dugh Dairy. It was alleged that petitioner was in need of money before 6-7 months of issuance of cheque which was given to the petitioner for carrying on his business by the respondent. It is submitted that after settlement of accounts petitioner issued a cheque of Rs. 1,15,997/- on 07/11/2005 of Punjab and Sind Bank, Nanda Nagar, Indore in favour of respondent. It was alleged that the said cheque was deposited by the respondent for collection but the cheque was returned with an endorsement to the effect that account is closed. It was alleged that respondent issued a notice of demand on 22/11/2005 which was duly served but inspite of that cheque amount was not paid and notice was wrongly replied. It was alleged that since the cheque amount has not been paid by the petitioner inspite of notice, therefore, the petitioner has committed an offence punishable under Section 138 of NI Act. It was prayed that after taking cognizance of the offence and also after securing the presence of petitioner, petitioner be convicted.
After taking cognizance of the offence and framing of charge and recording of evidence learned Court below convicted the petitioner against which an appeal was filed which was dismissed, hence this petition.

Learned counsel for the petitioner argued at length and submit that petitioner has convicted illegally while petitioner has not committed any offence. Learned counsel further submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this revision. It is submitted that the learned Courts below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses. It is submitted that under Section 138 of NI Act accused is liable to pay legally recoverable dues. It is submitted that burden to prove was on the complainant. It is submitted that there is absolutely no evidence on record to show that at any point of time loan was given to the petitioner. It is submitted that father of the petitioner Prakashchand Shrivastava took a loan of Rs.50,000/- from the respondent and the said amount was paid by father of the petitioner. It is submitted that in notice dated 21/06/2004 which is Ex.D/1 father of the petitioner informed respondent that respondent is possessing pro-note while the amount has already been paid and this notice was duly received by the respondent on 01/07/2004 of which reply is ExD/2 in the reply it was alleged by the respondent that father of the Petitioner has entered into an agreement to sale his property for a sum of Rs.4,00,000/- and a sum of Rs.3,00,000/- has advanced by respondent to father of the petitioner. It is submitted that in the reply it was also alleged that since the father of petitioner wants to grab the amount of earnest money, therefore, notice has been given. It is submitted that this reply was further relied by the petitioner vide Ex.D/3 which is dated 16/07/2004 and thereafter the present complaint has been filed by the respondent. It is submitted that the alleged cheque is dated 02/11/2005 and, in the complaint it was alleged that earnest money was advanced by respondent to the petitioner before 6-7 months meaning thereby the amount was paid by the respondent to the petitioner somewhere in the month of May or June, 2005 while series of notice is of the year 2004. It is submitted that in such circumstance no prudent man will lend such a huge amount to petitioner when the respondent advanced earnest money to father of the petitioner and father of petitioner failed to execute the transfer of property in favour of respondent. It is submitted that there is absolutely nothing on record to justifying the averment of complainant. Learned counsel placed reliance on a decision of this Court in the matter of Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal AIR 1999 SC 1008 wherein Hon'ble Apex Court observed that upon consideration of various judgments, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. Reliance is also placed on a decision in the matter of K. Prakashan Vs. P.K. Surenderan 2008 (1) NIJ 1 (SC) wherein Hon'ble Apex Court has held that standard of proof so far as prosecution is concerned, is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability.

(3.)LEARNED counsel was further submits that respondent has not disclosed the source from where the amount was paid to the petitioner. It is submitted that respondent has stated that the loan was given in two installments of Rs.60,000/- each. It is submitted that respondent has stated that for payment of the amount loan of Rs.25,000/- was taken by the respondent and a sum of Rs.35,000/- was deposited with the Society which was withdrawn. It is submitted that inspite of asking the relevant documents were not filed by the respondent.
On the strength of aforesaid position of law it is submitted that learned Courts below committed error in convicting the petitioner for the offence alleged to have been committed under Section 138 of NI Act. It is submitted that the petition filed by the petitioner be allowed and the impugned judgment passed by learned Courts below be set-aside.