Judgment N.K. Mody, J. : Being aggrieved by judgment dated 17.1.2005, passed by 15th Additional Sessions Judge, Indore in Criminal Appeal No. 255/2004, whereby judgment dated 7.5.2004, passed by JMFC, Indore in Criminal Case No. 1914/2003, by which petitioner was convicted for an offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as N.I. Act) with a fine of Rs. 1,50,000/- and jail sentence of one month was maintained, the present petition has been filed. 2. Short facts of the case are that the respondent filed a complaint under Section 138 of N.I. Act on 7.4. 1995 alleging that respondent lent a sum of Rs. 1 lac in cash on 7.3.1994 to the petitioner for her family needs and commercial need of her husband Ramlal. It was alleged that the petitioner issued post-dated cheque bearing No. 519253 dated 7.3.1995 and assured that upon presentation of the cheque amount shall be paid to the petitioner. It was alleged that after due date respondent submitted the cheque for encashment through Bank of India. Branch M.G Road, Indore but the same was returned back as the account was closed. It was alleged that the petitioner after issuance of cheque closed the account, which amounts to cheating. It was also alleged that after return of the cheque on 8.3.1995 respondent issued a notice for demand which was duly served but in spile of that cheque amount was not paid to the respondent. It was alleged that the petitioner has committed an offence which is punishable under Section 138 of N.I. Act. It was prayed that after taking cognizance and notice petitioner be punished. 3. After filing of the complaint statement of the respondent was recorded under Section 202 of Cr.P.C. After taking cognizance and also after framing the charge against the petitioner evidence was recorded and petitioner was convicted as stated above, which was maintained by the learned Additional Sessions Judge, hence, this petition has been filed. 4. Learned Counsel for the petitioner argued at length and submits that the impugned order is illegal, incorrect and deserves to be set aside. It is submitted that there was nothing on record to show that at any point of time amount of Rs. 1 lac was given to the petitioner by respondent. 4. Learned Counsel for the petitioner argued at length and submits that the impugned order is illegal, incorrect and deserves to be set aside. It is submitted that there was nothing on record to show that at any point of time amount of Rs. 1 lac was given to the petitioner by respondent. It is submitted that much before issuance of cheque account was closed by petitioner, therefore, there was no justification on the part of the Courts below, in convicting the petitioner. 5. Learned Counsel for the petitioner S.M. Dagaonkar placed reliance on a decision of the Hon'ble Supreme Court in the matter of Krishna Janardhan Bhat v. Dattatraya G. Hegde, AIR 2008 SC 1325 , wherein Hon'ble Supreme Court has held that a statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not, must, therefore, be determined keeping in view the other evidence on record. For the said purpose. stepping into the witness-box by the appellant is not imperative. In case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. 6. Learned Counsel for the petitioner also placed reliance on a decision in the matter of M.S. Narayana Menon @ Mani v. State of Kerala and Another, MPLJ 2006(4) 97, wherein Hon'ble Supreme Court has observed that if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138. It was also observed that presumptions both under Sections 118(a)and 139 are rebuttable in nature. Learned Counsel for the petitioner submits that right from the beginning the case of the petitioner was that the petitioner was in good terms with the respondent who was in need of money. Blank cheque was given by the petitioner to the respondent on his request as respondent wanted to show some one that respondent is having a blank cheque. It was submitted by the petitioner that this fact was proved by the evidence, adduced by the petitioner, and also from the cross-examination made on behalf of the petitioner upon the respondent. It is submitted that the cheque Ex. P/l is signed by the petitioner in Hindi and at that time it was blank. It was submitted by the petitioner that this fact was proved by the evidence, adduced by the petitioner, and also from the cross-examination made on behalf of the petitioner upon the respondent. It is submitted that the cheque Ex. P/l is signed by the petitioner in Hindi and at that time it was blank. It is submitted that all the blank spaces were filled in English while the petitioner is not knowing the English language. It is submitted that the respondent was not having funds of Rs. 1 lac at point of time. It is also submitted that the respondent is not a person of good character as is evident from a news cutting in the newspaper “Apna Indore” dated 19.1.2004, wherein news was published in headlines “call girl supply karnewala dalal police giraft se bahar”. It is mentioned that the business of call girl was being done by the respondent-Jairam from his flat. 7. In alternative, learned Counsel for the petitioner submits that petitioner is a widow who was in jail w.e.f. 17.1.2005 to 25.1.2005. It is submitted that since the substantive part of jail sentence has already been completed by the petitioner, therefore, the petition filed by the petitioner be allowed and jail sentence be converted as undergone. 8. Mr. Pratik Maheshwari, learned Counsel for the respondent, submits that procedural requirement of Section 138 of the N.I. Act are that there is legally enforceable debt, that drawer of the cheque issued the cheque to satisfy the debt and the cheque so issued has been returned due to insufficiency of funds. It is submitted that all ingredients which constitute the offence punishable under Section 138 of the Act was duly proved by respondent, therefore, no illegality has been committed by the learned Courts below in convicting the petitioner. 9. Learned Counsel for the respondent submits that since the cheque was issued by the petitioner to fulfil the liability of debt as security, therefore, no illegality has been committed by the Court below in convicting the petitioner. For this contention, learned Counsel placed reliance on a decision in the matter of Umaswamy v. K.N. Ramanath, 2007(2) DCR 377, wherein Karnataka High Court in a case where the cheque was issued was against security for payment held it is negotiable instrument and encashable security at the hands of payee. For this contention, learned Counsel placed reliance on a decision in the matter of Umaswamy v. K.N. Ramanath, 2007(2) DCR 377, wherein Karnataka High Court in a case where the cheque was issued was against security for payment held it is negotiable instrument and encashable security at the hands of payee. Therefore, merely because the drawer contends that it is issued as security is not a ground to exonerate the penal liability under Section 138 of the N.I. Act. Learned Counsel also placed reliance on a decision in the matter of Purushottam v. Manohar K. Deshmukh, 2007(2) DCR 379, wherein Bombay High Court has held that cheque is a promise made in writing to pay certain sum, it would be covered by Clause 3 of the Section 25 and, therefore, it would not be open for the accused to say that there is no legally enforceable liability. Learned Counsel placed reliance on a decision in the matter of B. Ramchandra Rcddy v. Abid Ali, 2007(2) DCR 39. wherein Andhra Pradesh High Court has held that in case where cheque was issued with the intention that it should cover the liability of his father, he cannot escape from offence. Trial Court has rightly convicted the accused. Reliance was placed on a decision in the matter of M/s. Intech Net Limited v. State, IV (2007) BC 468=2007(2) DCR 13, wherein cheque was issued as "Self" without striking the word “Bearer”. Andhra Pradesh High Court has held that complainant is entitled to receive the amount on its dishonour. Learned Counsel placed reliance on a decision in the matter of R. Sivaraman v. State of Kerala. III (2007) BC 729= 2006(2) DCR 514 , wherein Kerala High Court has held that Court has to presume that cheque had been issued for a debt or liability and burden of proving that cheque had not been issued in discharge of a debt or liability is on accused unless rebutted. Lastly reliance was placed on a decision in A. V. Murthy v. B.S. Nagabasavana. 2002 DCR 7 , wherein Hon'ble Supreme Court has observed that there is presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. Lastly reliance was placed on a decision in A. V. Murthy v. B.S. Nagabasavana. 2002 DCR 7 , wherein Hon'ble Supreme Court has observed that there is presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. Even under Section 139 of the Act, it is specifically stated that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. On the strength of the decisions, learned Counsel for the respondent submits that the petition filed by the petitioner be dismissed. At last learned Counsel submits that the jurisdiction of this Court in revision is limited and while exercising such powers, this Court cannot disturb the concurrent findings of trial Court. It is submitted that in the circumstances, petition is dismissed. 10. So far as cutting of the newspaper is concerned, learned Counsel for the respondent submits that it is the photocopy of newspaper. Apart from this it is submitted that the cutting of the newspaper has no authenticity. It is also submitted that without giving any opportunity to the respondent to explain, the same cannot be looked into by this Court at this stage. It is also submitted that for an offence punishable under Section 138 of the Act the fact stated in the said newspaper is of no relevance. 11. From perusal of the record, it is evident that to prove the case respondent has filed documentary evidence Ex. P/1, cheque issued in favour of the respondent for a sum of Rs. 1 lac Ex. P/2, letter of Bank of India to whom the cheque was presented by the respondent for collection Ex.P/3, memo of State Bank of India whereby the cheque was returned with endorsement that account of the petitioner was closed on 10.12.1993 Ex.P/4, demand notice dated 9.3.1995 issued by the respondent and reply notice Ex.P/5 dated 24.3.1995 issued by the petitioner. Apart from these documents, respondent has also submitted Ex.P/6 which is account opening form of the respondent, Ex.P/7 copy of inwords cheques returned book and Ex.P/8 copy of statement of account of the respondent. Apart from the aforesaid documents respondent examined himself as PW-1 and also examined one A.K. Jain, Branch Manager, Palasiya Road, Indore as PW-2. Apart from these documents, respondent has also submitted Ex.P/6 which is account opening form of the respondent, Ex.P/7 copy of inwords cheques returned book and Ex.P/8 copy of statement of account of the respondent. Apart from the aforesaid documents respondent examined himself as PW-1 and also examined one A.K. Jain, Branch Manager, Palasiya Road, Indore as PW-2. Petitioner has examined her husband Ramlal as DW-1, Natthulal Jain as DW-2, Khusbeer Singh as DW-3, Manoj as DW-4 and Jagdeesh Prasad Dubey as DW-5. Apart from oral evidence petitioner has also proved document Ex.D/1 agreement dated 10.7.1993, which has been executed by the respondent. 12. From perusal of the case and the law cited by both the parties, it is evident that even if account is closed after issuance of the cheque with an intention to defraud creditor, the debtor is liable to be prosecuted under Section 138 of the Act and the defence account is closed is not available to the accused. It is alsoa settled position of law that where the chances of false implication cannot be ruled out, the background fact and conduct of the parties together with their legal requirements are required to be taken into consideration. So far as paper cutting of newspaper “ Apna Indore” is concerned, wherein news is published to the effect that respondent is in trade of supply of call girls, that cannot be taken into consideration by this Court with two reasons; firstly, aforesaid paper cutting is photocopy and the said news is alleged to have been published on 19.6.1994 which has not been filed by the petitioner in time in accordance with law. Apart from this, for convicting the petitioner, it has to be seen whether offence under Section 138 of the Act is made out or not, and the petitioner cannot be acquitted on the basis of conduct of the respondent which has no relation with the transaction in dispute. Apart from this, since no opportunity is given to the respondent to meet out the paper cutting, the same cannot be taken into consideration, as it is against the principle of natural justice. 13. Certain important facts which has not been taken into consideration by the Courts below which are as under: (i) Ex. P/l is the cheque, which bears signature of the petitioner in Hindi whereas all the blanks of the cheque has been filled in English. 13. Certain important facts which has not been taken into consideration by the Courts below which are as under: (i) Ex. P/l is the cheque, which bears signature of the petitioner in Hindi whereas all the blanks of the cheque has been filled in English. Instead of explaining respondent has shown ignorance about author who has filled in the blanks. (ii) As per the complaint, the alleged transaction took place on 7.3.1994 while the post-dated cheque was given for 7.3.1995. Ex. P/3 which is memorandum issued by the concerned Bank shows that account of the petitioner was closed on 10.12.1993, much prior to the date of alleged transaction. (iii) Ex. P/8 is the copy of the Bank account of the respondent, which contains entries from 3rd October, 1991 to February 1995. From perusal of the said Bank account, it is evident that on the date of the alleged transaction dated 7.3.1994, when alleged amount of Rs. 1 lac was given to the petitioner the balance of the account of the respondent was in three figures. This account also shows that respondent was not having balance at any point of time of more than Rs. 7,000/-. (iv) There is no evidence on record to show that what was the nature of the family need of the petitioner and commercial need of the husband of the petitioner for which a sum of Rs. 1 lac was given by the respondent to the petitioner. (v) Although in law it is not permissible, but in spite of that opportunity was given to the respondent who was present in Court at the time of hearing, to demonstrate by any cogent evidence that the respondent was having a balance of Rs. 1 lac on the date of alleged transaction, which is alleged to have taken place on 7.3.1994. (vi) Apart from above, there is document Ex. D/l which is dated 10.7.1993 which is bearing the signature of the respondent and which has been admitted by the respondent. The contents of Ex. 1 lac on the date of alleged transaction, which is alleged to have taken place on 7.3.1994. (vi) Apart from above, there is document Ex. D/l which is dated 10.7.1993 which is bearing the signature of the respondent and which has been admitted by the respondent. The contents of Ex. D/l are to the effect that respondent and Ramlal, husband of the petitioner, entered into an agreement on 10.7.1993, whereby compromise took place between the parties and as per terms of compromise respondent took the responsibility to pay the instalments to the financier of Maruti Van bearing registration No. DDV 2029, which was in the name of petitioner and Maruti Car bearing registration No. MP 09-0433 which was in the name of Mr. K.P. Maheshwari, Advocate of the respondent. Respondent has not explained that in what circumstances this agreement took place between the parties on 10.7.1993 and thereafter in what circumstances and for what business a sum of Rs. 1 lac was given by the respondent on 7.3.1994 for which neither the respondent is having any proof nor any document was executed between the parties. In view of this, the learned Court below committed error in convicting the petitioner holding that the offence under Section 138 of the Act has been proved. Thus, this petition is allowed and the impugned judgment dated 17.1.2005 passed in Criminal Appeal No. 225/2005 and the judgment dated 7.5.2004 passed by J.M.F.C. in criminal Case No. 1914/03 stands set aside. No order as to costs. Petition allowed.