ARUN MANDAN,J. - (1.) IN both the cases, the parties are common and dispute is identical, therefore, they are being dealt with and finally decided by this common order.
(2.) BOTH the revision petitions have been preferred against the order dated 18.7.98 of the learned Addl. Sessions Judge No. 1, Udaipur, in Cr. Appeals No. 46/98 and 47/98 titled "Bhagwanlal v. State and Anr," confirming the order dated 29.8.97 of learned Addl. Civil Judge (J.D.) cum Judicial Magistrate No. 1 Udaipur, in Cr. Case Nos. 48/95 and 49/95 respectively, whereby the trial Court convicted the petitioner for offence punishable under section 138 of the Negotiable Instruments Act and sentenced him to simple imprisonment for six months in first case and for three months in second case and also imposed a fine of Rs. one lac and in default thereof, further two months SI in Cr. Case No. 49/95 and Rs. fifty thousands and in default thereof, further one month"s SI in Cr. Case No. 49/95. For the sake of convenience and ready reference S.B. Cr. Revision petition No. 530/98 is treated as a main case. In short, the facts are that the complainant Rajendra Kumar (Respondent No. 2) filed a complaint in the Court of learned Civil Judge (J.D.)-cum-Judicial Magistrate No. 1 Udaipur, against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (Act No. XXVI of 1881), hereinafter referred to as 'the Act', on the basis of which two cases were registered against the petitioner as case Nos. 48/95 and 49/95, on the allegation that the petitioner who was a contractor by profession had taken a loan of rupees one lakh fifty thousand from him, with an under taking to re-pay the said loan amount within the stipulated time and which he had defaulted to re-pay as per the terms and conditions of the said agreement, which was duly executed between the parties at Udaipur on 12.8.1991. The complainant had further contended in the complaint that since petitioner was carrying on the work of laying under- ground cables with the telephone department on contract basis and was in need of money for competing the work undertaken on behalf of the Telephone Department, the facility of availing the loan amounting to Rs. 1,50,000/- in all, by way of four instalments was extended to him by the complainant respondent No. 2, as per the break-up given below :- 12.6.91 Rs. 50,000/- 05.791 Rs. 25,000/- 18.7.91 Rs. 25,000/- 12.8.91 Rs. 50,000/- Total Rs. 1,50,000/-
(3.) THESE amounts were obtained by the petitioner against the receipt issued in token of acknowledgment of the payment of the loan amount advanced to him by the respondent No. 2. As per clause (2) of the agreement, the said amount was to carry monthly interest at the rate of 2 percent. It was further clarified in the agreement that in case, the loanee (petitioner) does not repay the loan amount or in the event of any default on his part to repay the said amount, on or before 21.2.1994, then not only he shall be liable to refund the entire amount with interest to the loaner (respondent No. 2) but he shall also be subjected to Civil and Criminal action in Court of law, and shall be responsible for all costs and consequences ensuing therefrom. The agreement was duly executed on the stamp paper of the requisite value and signed and attested by the parties at Udaipur where the transaction took place on 12.8.1991, in accordance with the terms of the agreement, reduced to writing between the parties and also witnessessed by the attesting witnesses. As against the above loan amount, the petitioner had issued two post-dated cheques in favour of the complainant (respondent No. 2), bearing No. 983369 dated 10.2.1994 and No. 983370 dated 21.2.1994, for Rs. 50,000/- and Rs. 1,00,000/- respectively. The said cheques when presented for encashment by the complainant with his bankers-namely, State Bank of India, Udaipur, were dishonoured with the endorsement of the Bank- 'insufficient funds in account' of the petitioner therein who had issued the said cheques. Thereafter, the respondent No. 2 being aggrieved, sent a registered notice of demand to the petitioner on 18.2.1994, the receipt of which, however, was denied by the petitioner on the ground that since he was not available at the address indicated in the notice, being out of station and hence, he had no knowledge of its contents nor any presumption could be drawn against him as regard its receipt.;