JUDGMENT : Being aggrieved by the judgment dated 7.5.2008 passed by VI ASJ, Fast Track Court, Ujjain in Cr. Appeal No. 500/07 whereby the judgment dated 6.10.2007 passed by JMFC, Ujjain in Cr. Case No. 13346/06 whereby the petitioner was con­victed for the offence punishable under Sec­tion 138 of the Negotiable Instruments Act (which shall be referred hereinafter as "the N.I. Act") and sentenced for a period of 9 months and compensation of Rs. 90,000/- was main­tained, the present petition has been filed. 2. Short facts of the case are that on 10.7.2006 respondent filed a complaint against the petitioner under Section 138 of the N.I. Act wherein it was alleged that a sum of Rs 80,000/was lent by the respondent to the petitioner for his needs. It was alleged that in lieu of which the petitioner issued a cheque of Rs. 80,000/- which was duly singed by him. It was alleged that upon presentation, the cheque was returned with a memo bearing re­mark "exceeds arrangement". It was alleged that thereafter a notice of demand was issued by the respondent which was duly received by the petitioner but in spite of receipt of no­tice neither cheque amount was paid nor no­tice was replied, hence the petitioner has com­mitted an offence which is punishable under Section 13 8 of the N.I. Act and after taking congaizance and after framing of charges the petitioner be convicted. 3. After framing of charges and recording of evidence, learned Trial Court convicted the petitioner under Section 138 of the N.I. Act and sentenced him as stated above, against which an appeal was filed in which the con­viction and sentence was maintained, hence this petition. 4. Learned Counsel for petitioner submits that impugned judgment passed by the learned Courts below is illegal and deserves to be set aside. Learned Counsel submits that in sup­port of the complaint, there is no legal evi­dence on the basis of which it can be said that contents of the complaint have been proved. It is submitted that respondent has not examined himself, on the contrary he has filed the affidavit in support of the complaint. It is sub­mitted that in the affidavit at every place re­spondent has stated the word XXX XXX XXX It is nowhere stated by the respondent in the affi­davit the petitioner has issued the cheque and it was signed by the petitioner. It is sub­mitted that in the affidavit at every place re­spondent has stated the word XXX XXX XXX It is nowhere stated by the respondent in the affi­davit the petitioner has issued the cheque and it was signed by the petitioner. Learned Coun­sel submits that Chapter 9 of M.P. High Court Rules, 2008 deals with affidavit. As per Rule 7 of the Rules in the affidavit it must state "I solemnly affirm or I state on oath." It is sub­mitted that in view of this evidence which has been adduced by the respondent cannot be looked into. Learned Counsel further submits that petitioner is a trader and in the business of fertilizer. It is submitted that petitioner was selling the fertilizer as commercial agent of the respondent. Apart from this petitioner was also representative of music company. It is sub­mitted that in that account the petitioner was to pay Rs. 40,000/- to the respondent for which blank cheque was given by the peti­tioner. It is submitted that cheque was misued by the respondent in filing the complaint. In view of the aforesaid facts learned Counsel submits that petition filed by the petitioner be allowed and impugned judgment be set aside. 5. Learned Counsel for respondent submits that after due appreciation of evidence on record, both the Courts below have come to the conclusion that petitioner has committed an offence which is punishable under Section 138 of the N.I. Act which requires no interference. It is submitted that petition be dis­missed. 6. From perusal of record it appears that in support of the complaint, respondent has filed the affidavit which is duly notarized. In the af­fidavit at number of places for the petitioner the word XXX XXX XXX has been used which is not appropriate. However since the petitioner has fully cross-examined the respondent then only on this technical ground it cannot be said that respondent has not adduced the legal evidence in support of the complaint. 7. From perusal of record, it is evident that before filing of the complaint respondent has issued a notice to the petitioner which was received by the petitioner but was not replied by the petitioner for best reasons known to him. By not replying the notice, impliedly the petitioner has admitted the contents of the notice as there is no explanation to it. 8. By not replying the notice, impliedly the petitioner has admitted the contents of the notice as there is no explanation to it. 8. Upon perusal of record it emerges that statement of the petitioner was recorded un­der Section 131, Cr.P.C. wherein petitioner himself has admitted that petitioner issued two cheques duly signed but the same were blank. He has also stated that he was owning a sum of Rs. 49,000/- against the respondent but the respondent has misused the cheque and filled in the cheque of Rs 80,000/-. Since the re­spondent is holder of the cheque duly singed by the petitioner and also the petitioner has admitted that there were commercial relations between the parties therefore presumption has to be drawn in favour of the respondent and same was duly discharged by the respondent by adducing legal evidence, thereafter the burden was on the petitioner to prove that in fact transaction took place between the parties for Rs. 40,000/- and no liability of Rs, 80,000/- was on the petitioner. 9. After going through the evidence on record, this Court is of the view that petitioner has failed to prove that the petitioner was not liable for the payment of the cheque amount. In view of this no illegality has been commit­ted by the learned Courts below in convicting the petitioner under Section 138 of the N.I. Act which can be corrected by this Court while exercising the revisions jurisdiction. 10. However, so far as jail sentence is con­cerned, from perusal of record it appears that petitioner was in-jail w.e.f. 7.5.2008 and vide order dated 29.5.2008 the jail sentence was suspended by this Court. In view of the fact, that petitioner has already served part of jail sentence and looking to the limited prayer made by the Counsel for petitioner, this Court is of the view that purpose would be served in case the jail sentence awarded to the petitioner is reduced to the period already undergone subject to payment of cheque amount within a period of 2 months, in case of default, the pe­titioner shall suffer the jail sentence as mentioned hereinabove. Petitioner is on bail. His bail bond stands discharged. 11. With the aforesaid modification in the sentence, the petition stands disposed of. C.C, as per rules.