JUDGMENT : Being aggrieved by the judgment dated 21.8.2008 passed by VI Additional Session Judge (Fast Track), Ujjain in Cr. A. No. 397 08 whereby the judgment dated 15.1.2008 passed by ASJ, Ujjain in Case No. 1255/07 whereby the petitioner was convicted for an offence punishable under Section 138 of Ne­gotiable Instruments Act (which shall be re­ferred hereinafter as an "Act") for a period of one year RI with fine of Rs. 1,000/- and in default in payment of fine further RI for a pe­riod of one month and payment of Rs. 60,000/- as compensation, was confirmed, present petition has been filed. 2. Short facts of the case are that the re­spondent No. 2 filed a complaint before that learned Trial Court under Section 138 of the Act on 11.2.2007 alleging that the petitioner was in good terms with respondent No. 2 and because of good terms respondent No. 2 lent a sum of Rs. 55,000/- in cash to the petitioner. It was alleged that after receipt of money petitioner issued a cheque bearing No. 108084 of Rs 55,000/- dated 23.12.2006 of Vikramaditya Nagrik Sahkari Bank Maryadit Ltd., Branch Pahidpur, Ujjain, it was alleged that the cheque was presented by the respon­dent No.2 through its Banker Indian Over­seas Bank, Branch Dabripitha, Ujjain which was returned with endorsement "insufficient funds". Further case of respondent No. 2 was that notice for demand was issued on 5.1.2006 which was duly served on the petitioner on 5.1.2007 but in spite of notice neither the amount was paid nor the notice was replied, thus the petitioner has committed an offence which is punishable under Section 138 of the Act. It was prayed that after taking cognizance of the offence and also after issuance of no­tice to the petitioner, petitioner be convicted for the alleged offence. After taking cognizance of the offence, charge was framed and after recording of evidence petitioner was convicted as stated above. In appeal conviction was maintained, hence this petition. 3. Learned Counsel for the petitioner argued at length and submits that the impugned judgment passed by the learned Courts below arise illegal, incorrect and reserves to be set aside. It is submitted that petitioner does not know the respondent No. 2 and no transaction was taken place between the petitioner and respon­dent No. 2. 3. Learned Counsel for the petitioner argued at length and submits that the impugned judgment passed by the learned Courts below arise illegal, incorrect and reserves to be set aside. It is submitted that petitioner does not know the respondent No. 2 and no transaction was taken place between the petitioner and respon­dent No. 2. It is submitted that in fact peti­tioner lost four blank cheques which includes the present cheque also and notification was published by the petitioner in the Newspaper Dainik Avantika dated 9.12.2006 and com­plaint was also lodged by the petitioner on 10.12.2006 at Police Station Central Kotwali, Ujjain, wherein it was alleged that petitioner has lost four cheques. It is submitted that in the facts and circumstances of the case, learned Court below committed error in passing the impugned judgment whereby the petitioner has been convicted. It is submitted that the peti­tion filed by the petitioner be allowed. 4. Learned Counsel for respondent No. 2 submits that the respondent No. 2 was the holder of cheque was in a Negotiable Instru­ment. It is submitted that burden to prove that no transaction was taken place was on the petitioner, but petitioner failed to prove his case. It is submitted that in the facts and cir­cumstances of the case, learned Courts be­low has rightly convicted the petitioner. It is submitted that the jurisdiction of this Court while exercising revision jurisdiction is limited, hence no interference can be made. It is sub­mitted that the petition filed by the petitioner be dismissed. 5. From perusal of the record it is evident that following are the important aspects of the case which has not been taken into consider­ation by the learned Courts below: (i) In the complaint filed by the respondent No. 2 it is no where stated that on what date loan of Rs. 55,000/- was given by the respon­dent No. 2. (ii) It is also not stated in the complaint that for payment of Rs. 55,000/- to the petitioner, from where the amount was withdrawn by the respondent No.2. (iii) It is also not stated in the complaint that what was the necessity for which loan of Rs. 55,000/- was taken by the petitioner. (ii) It is also not stated in the complaint that for payment of Rs. 55,000/- to the petitioner, from where the amount was withdrawn by the respondent No.2. (iii) It is also not stated in the complaint that what was the necessity for which loan of Rs. 55,000/- was taken by the petitioner. (iv) In spite of the fact that it was specifically stated by the petitioner that petitioner does not know the respondent No. 2, no evi­dence was adduced by the respondent No. 2 to prove the intimacy between the parties, as stated in the complaint. (v) Petitioner is resident of Village Javsiasolnaki, Police Station Raghvi, Tehsil Mahidpur, District Ujjain, while the respon­dent No. 2 is resident of Agar Road, Ujjain. (vi) Petitioner has produced the copy of the complaint NA/1 which was lodged by the petitioner with P.S. Central Kotwali, Ujjain which was sent by the petitioner by Registered Post to the Station Officer, Police Station Central Kotwali, Ujjain and also Police Station Raghvi, Distt. Ujjain. The receipt of registry are NA/2 and the acknowledgments are also on record. Apart from this petitioner has also filed copy of reply of notice and the Newspaper Dairiik Avantika dated 10.12.2006 wherein a public notice was issued stating that the petitioner has lost the cheques. Petitioner has also filed a receipt of payment of Rs. 250/- dated 1.12.2006 which was received from the of­fice of Dainik Avantika which was given for publication of the public notice. (vii) Apart from this petitioner has also ex­amined NAW/1 Pursingh, NAW/2 Kishor Shah and NAW/3 Badan Singh. Pursingh is the father of the petitioner who has stated that the cheques were lost when Pursingh went to Budhwaria Hat, Ujjain along with his son Darwariya to purchase she-buffaloes. 6. In the matter of Krishna Janardhan Bhat vs. Dattatraya G. Hegde, (2008) 2 SCC (Cri.) 166 wherein Hon'ble Apex Court in the matter of complaint under Section 138 of the Act where the complaint alleged have been advanced a sum of the Rs. 1.5 lakh. Hon'ble Apex Court observed that Trial Court do not draw any inference as to the probabil­ity of the complainant advancing a sum of Rs. 1.5 lakh on mere asking and that too without keeping any documentary proof of requiring presence of any witness and also there is no indication as to any business transactions be­tween them. 1.5 lakh. Hon'ble Apex Court observed that Trial Court do not draw any inference as to the probabil­ity of the complainant advancing a sum of Rs. 1.5 lakh on mere asking and that too without keeping any documentary proof of requiring presence of any witness and also there is no indication as to any business transactions be­tween them. Hon'ble Apex Court further held that complainant failed to produce any books of accounts or any other proof to show that he got so much money from Bank. It was fur­ther observed that Courts below failed to no­tice that ordinarily in terms of Section 269-SS, Income Tax Act, any advance taken by way of loan or more that Rs. 20,000/- had to be made by an account payee cheque only. In the facts and circumstances of the case it was held that Court below approached the matter on wrong application of the legal principles to the fact situation of the case. Hence convic­tion and sentence was set aside. 7. In the present case also the learned Court Courts below has completely overlooked the aforesaid facts stated in Para 5. In facts and circumstances of the case in the opinion of this Court, the impugned judgment passed by the learned Courts below cannot be allowed to sustain and are set aside accordingly. With the aforesaid observations, petition stands disposed of.