Judgment ( 1. ) BEING aggrieved by judgment dated 8-11-06 passed by IInd Additional sessions Judge, (Fast Track), Neemuch in Criminal Appeal No. 180/05, whereby the judgment dated 16-9-05 passed in Criminal Case No. 622/03, whereby the petitioner was convicted under Section 138, Negotiable Instruments Act, (which shall be referred hereinafter as an Act) and was sentenced for RI for a period of one year with fine of Rs. 5,000/- was modified and the sentence of RI was set aside with a direction to pay a fine of Rs. 40,000/- and in case of default the petitioner shall be sent to jail for a period of six months, the present petition has been filed. ( 2. ) SHORT facts of the case are that the respondent No. 1 filed a complaint alleging that petitioner was in need of money in connection of his business, therefore, respondent No. 1 gave a sum of Rs. 37,000/- to the petitioner as loan on 5-2-2003. Further case of the respondent No. 1 was that petitioner gave post dated cheques of Rs. 15,000/-, Rs. 7,000/-, Rs. 12,000/- and rs. 3,000/-, dated 25-3-03,24-4-03,20-5-03 and 7-7-03 of Jila Sahkari Kendriya bank, Mandsaur to the respondent No. 1. Further case of the respondent No. 1, was that on 9-9-03 the cheque was presented by the respondent No. 1, but the same was returned by the concerned bank with a memo bearing remark "exceeds arrangements". It was alleged that another three cheques were presented by the respondent No. 1 on 12-9-2003, but they also returned by the bank with the same remark, hence the notice was issued by the respondent no. 1, where by the demand was raised, but was of no avail, hence the complaint was filed alleging that the petitioner has committed an offence, which is punishable under Section 138 of the Act, hence the petitioner be punished by rigoraus Imprisonment with fine. ( 3. ) THE complaint was contested by the petitioner. After framing of the charge and recording of the evidence, learned Trial Court allowed the complaint filed by the respondent No. 1 holding that the petitioner has committed an offence punishable under Section 138 of the Act and awarded sentence of one year with fine of Rs. ( 3. ) THE complaint was contested by the petitioner. After framing of the charge and recording of the evidence, learned Trial Court allowed the complaint filed by the respondent No. 1 holding that the petitioner has committed an offence punishable under Section 138 of the Act and awarded sentence of one year with fine of Rs. 5,000/-, against which an appeal was filed by the petitioner, which was disposed of by the Appellate Court, whereby the conviction under section 138 of the Act was maintained, however, the sentence of RI of one year was set aside with a direction that the petitioner shall pay a sum of Rs. 40,000/-within the stipulated time. It was further directed that in case the petitioner fails to pay the amount of fine within the stipulated time, petitioner shall be sent to jail as directed by the learned Trial Court for non-compliance of judgment. Against the judgment passed by the learned Appellate Court the petition has been filed. ( 4. ) MR. Sanjay Sharma, learned Counsel for the petitioner argued at length and submits that the learned Court below committed error in convicting the petitioner for an offence under Section 138 of the Act. It is submitted that no loan was given to the petitioner by the respondent No. 1 on 5-2-03 or any other date. It is submitted that the burden to prove that the loan of Rs. 37,000/- was given to the petitioner on 5-2-03 was on respondent No. 1, but there is nothing on record to show that any loan was given to the petitioner by respondent No. 1. It is submitted that right from beginning the defence of the petitioner was that the respondent No. 1 was running a B. C. in which 18 persons participates and a fixed amount is being given on monthly basis and the entire amount so collected is being given to one person out of the participants and in security of that the cheques are being taken. Learned Counsel submits that enough evidence was on record to show that no loan amount was given to the petitioner and the respondent No. 1 was not having sufficient funds to give the loan to the petitioner, but the entire evidence adduced by the petitioner was not at all taken in to consideration by the learned Court below. Learned Counsel submits that enough evidence was on record to show that no loan amount was given to the petitioner and the respondent No. 1 was not having sufficient funds to give the loan to the petitioner, but the entire evidence adduced by the petitioner was not at all taken in to consideration by the learned Court below. Learned Counsel further submits 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. ( 5. ) SMT. Rekha Shrivastava,. learned Counsel for respondent No. 1 submits that after dye appreciation of evidence both the Courts below have found the petitioner guilty for the aforesaid offence. It is submitted that revisional jurisdiction of this Court is limited and no interference is called for in the concurrent findings recorded by the Courts below. Learned Counsel further submits that learned Appellate Court committed error in converting the sentence of RI into fine. It is submitted that once the conviction under Section 138 of the Negotiable Instruments Act was confirmed by the Appellate Court, there was no justification on the part of learned Appellate Court in converting the Rigorous-Imprisonment into fine. ( 6. ) FROM perusal of the record, it appears that to prove the case the prosecution, i. e. , respondent No. 1 has produced the documents (Exhs. P-l to p-12) and has also examined respondent No. 1 as A. W. 1 and one kailashchandra, Manager Jila Sahkari Kendriya Bank, Mandsaur as A. W. 2, while petitioner has examined himself as N. A. W. 1, Farid (N. A. W. 2), Yasin (N. A. W. 3), Rashid Hussain (N. A. W. 4) and Shyamlal (N. A. W. 5 ). Apart from this petitioner has also filed the documents (Exh. D-1 to Exh. D-26 ). ( 7. ) IN the matter of Pandurang Sitaram Bhagwat Vs. Apart from this petitioner has also filed the documents (Exh. D-1 to Exh. D-26 ). ( 7. ) IN the matter of Pandurang Sitaram Bhagwat Vs. Stale of maharashtra, reported in 2005 SCC (Criminal) 1198, the Honble Apex Court has observed that the High Court in our considered opinion, should not have refused to exercise its revisional jurisdiction on the ground that no question of law had arises therein inasmuch as in terms of Section 397 of the Code of criminal Procedure, the correctness, legality or propriety of any findings, sentence or order may fall for consideration of the Revisional Court. ( 8. ) IN the matter of Paul George Vs. State, reported in 2002 Criminal law Journal 996, wherein the Honble Apex Court has held that whatever be the outcome of the pleas raised by the appellants on merits, the order disposing of the criminal revision preferred by appellant must indicate application of mind to the case and some reasons be assigned for negating or accepting such pleas. Mere ritual of repeating the words or language used in the provisions, saying that no illegality, impropriety or jurisdictional error is found in the judgment under challenge without even a whisper of the merit of the matter of nature of pleas raised does not meet the requirement of decision of a case judicially. The submissions made on behalf of the appellant could not be negated without examining them on merit. The order impugned, however does not indicate any trace of application of mind on the facts or the pleas raised before the Court. There is no need to emphasize that the reasons, howsoever brief they may be, are to be indicated in orders disposing of any matter. Moreso, when such orders are subject to appeal or review before the higher forum. In many decisions of this court, no doubt while dealing with orders passed in exercise of administrative or quasi-judicial power in those cases it has been observed that so as to indicate application of mind, the orders should contain some reasons which also helps to the Appellate or Revisional Authority to appreciate the merit of the orders passed and the way the decision has been arrived at. Matter remanded to High court for considering afresh. ( 9. ) IN the matter of State of Karnataka Vs. Matter remanded to High court for considering afresh. ( 9. ) IN the matter of State of Karnataka Vs. M. Devendrappa, reported in 2002 Criminal Law Journal 998, wherein in a case where the cheques were issued to a share broker complainant in share dealing and the defence of the accused was that the cheques were in question was issued by way of security and not towards any amount due to the complainant in share transactions, the honble Apex Court has held that the said cheques could not be said to have been issued in discharge of debt. Hence the same would not come within the purview of Section 138 of the Act. ( 10. ) FROM perusal of record, it is evident that petitioner has filed certified copies of number of complaints, filed by the respondent No. 1 against various persons of which details are as under:- ( 11. ) IN all the cases the prosecution has been lodged by respondent No. 1, under Section 138 of Negotiable Instruments Act on the ground that cheques issued in favour of respondent No. 1 were dishonoured. All the cheques on the basis of which prosecution has been filed are between years 2003 and 2004 and the prosecution was also filed in the year 2003-04. In the present case also, the prosecution was filed by respondent No. 1 on 10-10-03. ( 12. ) RESPONDENT No. 1 in his cross-examination has denied that he has filed number of cases under Section 138 of Negotiable Instruments Act, which is against the record as, number of complaints filed by the respondent No. 1 has been filed by the petitioner. No accounts has been filed by the respondent No. 1, while the respondent No. 1 is lending money to number of persons, against the security of cheques. The financial status of respondent No. 1 is also not very high. ( 13. ) PETITIONER has examined D. W. 1 to D. W. 5, who have categorically stated that cheques were issued in security of B. C. This material evidence was not appreciated by the learned Courts below in its proper perspective. Keeping in view the evidence on record, this Court is of the view that the petitioner has proved beyond doubt that the cheques were issued by the petitioner by way of security of B. C. along with number of other persons. Keeping in view the evidence on record, this Court is of the view that the petitioner has proved beyond doubt that the cheques were issued by the petitioner by way of security of B. C. along with number of other persons. Defence of accused/ petitioner is that petitioner issued the cheques in question by way of security and not towards any amount due to the respondent No. 1. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. ( 14. ) IN view of this, the said cheques cannot be said to have been issued in discharge of debt, hence the same would not come within the purview of section 138 of Negotiable Instruments Act. ( 15. ) IN view of this, petition filed by the petitioner is allowed. The judgment dated 8-11-2006 passed by IInd Additional Sessions Judge (Fast track), Neemuch in Cr. A. No. 180/05 and also judgment dated 16-9-05 passed in criminal Case No. 622/03 stands set aside. Petitioner stands acquitted from the charge under Section 138 of Negotiable Instruments Act. ( 16. ) WITH the aforesaid observations, petition stands disposed of.