JUDGMENT : N.K. Mody, J. Being aggrieved by the judgment dated 22/09/08 passed by XIASJ, Indore in Cr. A. No. 151/08 whereby the judgment dated 11/03/08 passed by JMFC, Indore in Criminal Case No. 1336/06 where by the petitioner was convicted for an offence punishable under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as an "Act") with imprisonment of one year and fine of Rs. 3,50,000/-, was maintained, the present petition has been filed. 2. Short facts of the case are that on 02/01/06 a complaint was filed by the respondent against the petitioner for an offence punishable under Section 138 of the Act, alleging that the petitioner was in need of money, hence loan of Rs. 2,55,000/- was given by the respondent to the petitioner on 11/02/05, upon payment of interest @ 2% per month, for which a promissory note was executed by the petitioner in presence of witnesses. It was alleged that the petitioner was required to repay the amount up to 11/11/05, for which a cheque was issued by the petitioner for a sum of Rs. 3,00,900/- with an understanding that upon presentation the cheque amount shall be paid to the respondent. It was alleged that the cheque was presented by the respondent to its banker State Bank of Indore, Branch Vaishnav Polytechnic Ground, Indore, which was returned on 17/11/05 with an endorsement to the effect "insufficient funds". It was alleged that the registered notice was issued on 19/11/05, which was returned on 22/11/05 with a remark that the addressee has gone out. It was alleged that notice was also sent under certificate of posting, which was duly served, but inspite of that the cheque amount was not paid, but the notice was replied on 11/01/06 whereby the transaction was denied. It was also alleged that he cheque was never being issued by the petitioner. It was alleged that by giving a false reply the petitioner has committed an offence which is punishable under Section 138 of the Act. It was prayed that after taking cognizance and also after the trial petitioner be convicted. 3. After recording of evidence led by the respondent cognizance of the offence was taken. After securing the presence of the petitioner and also after framing of charge and recording of evidence petitioner was convicted, which was maintained in appeal, hence this petition. 4. It was prayed that after taking cognizance and also after the trial petitioner be convicted. 3. After recording of evidence led by the respondent cognizance of the offence was taken. After securing the presence of the petitioner and also after framing of charge and recording of evidence petitioner was convicted, which was maintained in appeal, hence this petition. 4. Learned counsel for the petitioner argued at length and 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. Learned counsel further submits that sufficient evidence is on record to show that the alleged transaction never took place on 11.2.05, as stamp paper which has been used for execution of document is dated 09/04/09. It is submitted that the cheque was never dishonoured by the bank on account of exceeds arrangements, but in fact the account itself was closed by the petitioner on 09/04/03, which goes to show that in fact no transaction took place on the date which is mentioned in the cheque. It is submitted that not only the account was closed by the petitioner, but the intimation was also given by the petitioner to the bank vide letter Ex.D/1 to the effect that the cheque has been lost. Learned counsel further submits that not only this petitioner also lodged the police complaint about the fact that the cheque has been lost and also filed a claim against the concerned Bank where the District Consumer Forum, Indore on account of negligence on the part of bank in issuance of memorandum to the respondent to the effect exceeds arrangement. Learned counsel placed reliance on a decision in the matter of Raj Kumar Khurana Vs, State of (NCT of Delhi), (2009) 6 SCC 72 wherein Hon'ble Apex court held as under: Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by a bank unpaid. Learned counsel placed reliance on a decision in the matter of Raj Kumar Khurana Vs, State of (NCT of Delhi), (2009) 6 SCC 72 wherein Hon'ble Apex court held as under: Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by a bank unpaid. Such non-payment may either be: (i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or (ii) it exceeds the amount arranged to be paid from the account by an agreement with that bank. Before a proceeding thereunder is initiated, all the legal requirements therefore must be complied with. The Court must be satisfied that all the ingredients of commission of an offence under the said provision have been complied with. The parameters for invoking the provisions of Section 138 of the Act, thus, being limited, we are of the opinion that refusal on the part of the bank of honour cheque would not bring the matter within the mischief of the provisions of Section 138 of the Act. 5. On the strength of aforesaid decision, learned counsel submits that the petition filed by the petitioner be allowed and the impugned order passed by the learned Courts below be set aside. 6. Learned counsel for the respondent submits that after due 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 placed reliance on a decision in the matter of Electronics Trade & Technology Development Corpn. Ltd, 1996 SCC (Cri) 454 wherein Hon'ble Apex Court has observed that it should thus be clear that when a cheque is drawn by a person on an account maintained by him with the banker for payment of any amount of money to another person out of the account for the discharge of the debt in whole or in part of other liability is returned by the bank with the endorsement like (1) in this case, "refer to the drawer" (2) "instructions for stoppage of payment" and stamped (3) 'exceeds arrangement", it amounts to dishonor within the meaning of Section 138 of the Act. On issuance of the notice by the payee or the holder in due course after dishonour, to the drawer demanding payment within 15 days from the date of receipt of such a notice, if he does not pay the same, the statutory presumption of dishonest intention, subject to any other liability, stands satisfied. Learned counsel submits that even if it is assumed that the account was closed, then too, the petitioner can not escaped from his liability. It is submitted that the object bringing Section 138 of the Act statute is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. It is submitted that in the matter of Electronics Trade & Technology Development Corpn. Ltd. (Supra) Hon'ble Apex Court has held that despite civil remedy, Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induce the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly. It is seen that once the cheque has been drawn and issued to the payee and the payee has presented the cheque and thereafter, if any instructions are issued to the bank for non-payment and the cheque is returned to the payee with such an endorsement, it amounts to dishonour of cheque and it comes within the meaning of Section 138. Suppose after the cheque is issued to the payee or to the holder in the course and before it is presented for encashment, notice is issued to him to present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions, Section 138 does not get attracted. Under these circumstances, since the accused has not made the payment within 15 days from the date of the receipt of the notice issued by the payee or the holder in due course, the dishonest intention is inferable from those facts. Accordingly, the ingredients as contained in Section 138 have been prima facie made out in the complaint. The High Court, therefore, was wholly incorrect in its conclusion that the ingredients have not been made out in the complaint. Accordingly, the ingredients as contained in Section 138 have been prima facie made out in the complaint. The High Court, therefore, was wholly incorrect in its conclusion that the ingredients have not been made out in the complaint. Further reliance is placed on a decision in the matter of PK. Manmadhan Kartha Vs. Sanjeev Raj, 2002 SCC (Cri.) 1626 wherein Hon'ble Apex Court in a case where there was no evidence to show the cheque was issued prior to the closer of the account and that no contention was raised that the cheque was issued after closer of account, Hon'ble Apex Court has held that above factors do not rebut the statutory presumption under Section 139 and 118 of the said Act, so as to revise the order, set aside the conviction and sentence. Further reliance is placed on a decision of Hon'ble Apex Court in the matter of Prem Chand Vijay Kumar Vs. Yash Pal Singh, 2005 (4) MPLJ 5, wherein Hon'ble Apex Court held that the following facts are required to be proved to successfully prosecute the drawer for an offence under Section 138 of the Negotiable Instruments Act: (a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured; (b) that the cheque was presented within the prescribed period; (c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period; and (d) that the drawer failed to make the payment within 15 days of the receipt of the notice. Learned counsel further submits that reasons for dishonour of cheque are wholly irrelevant and cannot be taken into account. Learned counsel also placed reliance on a decision of this Court in the matter of Yogendra Kumar Vs. Ram Prakash Agrawal, 2007 (2) MPLJ 510 , wherein this Court held that once the cheque is issued by the drawer, presumption under Section 139 must allow. On the strength of aforesaid position of law, learned counsel submits that he petition filed by the petitioner be dismissed. 7. From perusal of the record it is evident that the cheque in question Ex.P/2 is dated 11/11/05, which is for Rs. 3,00,900/- and was executed on III 02/05 on a stamp paper dated 09/04/01. On the strength of aforesaid position of law, learned counsel submits that he petition filed by the petitioner be dismissed. 7. From perusal of the record it is evident that the cheque in question Ex.P/2 is dated 11/11/05, which is for Rs. 3,00,900/- and was executed on III 02/05 on a stamp paper dated 09/04/01. No cross-examination has been made by the petitioner to the respondent to the effect that when the transaction was of the year 2005, then in what circumstances the promissory note was on stamp paper which was dated 09/04/05. In para 10 of the cross-examination complainant has stated that the amount which was paid to the petitioner on 11/02/05 was withdrawn by him from State Bank of Indore, Branch Vaishnav Polytechnic Ground, Indore on 11/02/05 itself Complainant is a retired bank employee. No suggestion was given to the complainant that complainant never withdrawn this amount from the bank on that date. No effort was made by the petitioner to call the record of the concerned bank to rebut the fact that no amount was withdrawn by the complainant for payment to petitioner. Similarly the defence which has been taken by the petitioner is that the cheque was lost for which the complaint was lodged with the police and also with the bank much before the date when the cheque was issued, the account was closed and also since the banker has returned the cheque with a remark of 'insufficient funds' when the account was closed, therefore, petitioner also lodged the complaint against the concerned bank before Consumer Forum, Indore. 8. From perusal of the record it appears that the notice was duly replied by the petitioner and in the reply it is no where stated that the bank account was closed by the petitioner much before the alleged date or transaction. The only fact which is stated in the reply is that after seeing the document only, petitioner will be in a position to reply that how it reached to the respondent. The imported fact that the bank account was closed has not been stated by the petitioner in the reply. Ex.D/1 is the letter alleged to have been issued by the petitioner to the concerned bank, which is a photo-stat copy. The imported fact that the bank account was closed has not been stated by the petitioner in the reply. Ex.D/1 is the letter alleged to have been issued by the petitioner to the concerned bank, which is a photo-stat copy. Ex.D/1 bears a rubber stamp to the effect that the account closed, but petitioner has not stated anything in his evidence which is in shape of affidavit that who has put the seal relating to account closed and who has signed. Ex.D/2 is the complaint lodged by the petitioner with the police on 05/04/05, wherein the complaint is that the respondent has committed an offence which is punishable under Sections 419,420,406,427,209,210,500,501,506 of IPC by putting the cheques in the bank. 9. No complaint has been made by the petitioner that the cheque was lost on 09/04/03. Statement of Mahendra Kumar Patodi which were recorded by the police has been placed on record which is Ex.D/4. This statement was recorded under Section 161 Cr.P.C. on 26/11/07 and in this statement also Mahendra Kumar Patodi has not said that the account was closed by the petitioner on 09/04/03. Ex. D/3 is the complaint lodged by the petitioner before the District Consumer Forum, Indore, against the concerned bank is dated 17/07/07. Thus the complaint Ex.D/3 and Ex.D/4 alleged to have been filed by the petitioner with the police are after filing of the complaint or after taking of the cognizance by the learned trial Court for the offence punishable under Section 138 of the Act. 10. In fact the attending circumstances indicates that the complaint was lodged by the petitioner with the police and also the complaint lodged with the Consumer Forum to make out a defence in a criminal case which was filed against the petitioner. 11. After taking into consideration all the facts and circumstances of the case, the Court is of the view that no illegality has been committed by the learned Courts below in convicting the petitioner for an offence punishable under Section 138 of the Act. Hence the impugned order passed by the learned Courts below is maintained. 12. So far as the jail sentence and amount of compensation is concerned, it appears that both of them deserves to be modified. Hence the impugned order passed by the learned Courts below is maintained. 12. So far as the jail sentence and amount of compensation is concerned, it appears that both of them deserves to be modified. Keeping in view the facts and circumstances of the case in the opinion of this Court it will be proper that the petitioner shall deposit the cheque amount within a period of two months, failing which the petitioner shall be liable for the jail sentence for a period of three months. It is made clear that the amount deposited by the petitioner shall be adjusted in the said amount. Respondent shall be at liberty to withdraw the deposited amount. 13. With the aforesaid observations, petition stands disposed of. C.C. as per rules.