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2015 DIGILAW 472 (UTT)

NARESH KUMAR v. STATE OF UTTARAKHAND

2015-09-28

SUDHANSHU DHULIA

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JUDGMENT : Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard learned counsel for the parties on the delay condonation application and perused the records. 2. The reasons assigned for delay in filing the revision appears to be bona fide. The delay in filing the criminal revision is hereby condoned. 3. Accordingly, the delay condonation application is allowed. 4. This revision arising out of proceedings under Section 138 of Negotiable Instrument Act. The allegation in the complaint was that the complainant had given a loan of Rs. 5,85,000/- (Rupees Five Lakh and eighty five lakh only) to the accused/revisionist, which he did not return in spite of reminders. On 17.11.2012, the revisionist had given a cheque to the complainant for a sum of Rs. 5,85,000/- (Rupees Five Lakh and eighty five lakh only), which was dishonoured. Consequently, the complainant filed a complaint against the revisionist/accused. Thereafter, the accused was convicted and sentenced under Section 138 of Negotiable Instrument Act and awarded to undergo R.I. for one year and further a fine of Rs.5,90,000/- (Rupees Five lakh and ninety lakh only) by the Judicial Magistrate, Ramnagar, Nainital vide order dated 24.03.2014. Aggrieved by the said order the revisionist preferred an appeal before the 1st Additional District & Sessions Judge, Nainital, which was dismissed vide order dated 24.04.2015. Hence the present revision before this Court. 5. Heard Mr. P.C. Pethshali, learned counsel for the revisionist, Mr. V.K. Gemeni, learned Deputy Advocate General for the State/respondent No. 1, Mr. Servesh Agarwal, Advocate, present for respondent No. 2 and perused the record. 6. The trial court has considered the complaint as well as the defence of the accused and has come to the conclusion that the complainant has been able to prove his case. It is not a case of the accused that the cheque was not drawn by him and it does not bear his signature. The only plea taken by him is that he lost his cheque book, which was not accepted by the trial court and view of this Court that this is rightly so. There is, however, a presumption under Section 139 of Negotiable Instrument Act in favour of the holder/drawer, which reads as under:- “139. The only plea taken by him is that he lost his cheque book, which was not accepted by the trial court and view of this Court that this is rightly so. There is, however, a presumption under Section 139 of Negotiable Instrument Act in favour of the holder/drawer, which reads as under:- “139. Presumption in favour of holder – It shall presumed, unless the contrary is proved, and the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. 7. The lower court record was summoned and the same has been perused. All the parameters as laid down under Section 138 of Negotiable Instruments have been complied with and there is no procedural flaw in the proceeding of the court below. All the necessary ingredients, which are necessary for conviction in such matters, have been complied with by the court below. The cheque was drawn by the accused and it bears his signature and the same has been dishonoured. Moreover, in spite of request of the complainant, the amount has not been given to him. The complaint has been filed within time. 8. In view of the above facts, no interference is presently required of this Court in the matter. 9. Accordingly, the revision fails and is hereby dismissed. The interim bail granted to the revisionist by this Court vide order dated 11.08.2015 stands cancelled. The sureties furnished by the revisionist are hereby discharged. The revisionist shall surrender before the court concerned within a week from the date of receipt of certified copy of this order.