JUDGMENT : Heard Mr. Kripa Shankar Nanda, learned counsel for the petitioner. 2. Heard Mr. Tapas Roy, learned A.P.P. appearing on behalf of the opposite party- State. 3. Heard Mr. Awanish Shankar, learned counsel appearing on behalf of the opposite party no.2. 4. This petition has been filed for setting aside the judgment of conviction and sentence dated 31.05.2011 passed in Complaint No. 1610 of 2008 corresponding to TR No. 580/2011 by learned Judicial Magistrate, 1st Class at Hazaribagh whereby and whereunder the petitioner has been convicted for offence under Section 138 of Negotiable Instruments Act and sentenced to undergo Rigorous Imprisonment for one year with a fine of Rs. 2,00,000/- to be paid to the complainant. The petitioner also prays for setting–aside of the judgment passed in Criminal Appeal No. 107 of 2011 dated 28.04.2012 by learned Sessions Judge -III at Hazaribag whereby and whereunder he has been pleased to affirm the judgment passed by learned trial court. Arguments of the Petitioner 5. Learned counsel for the petitioner submits that the impugned judgment of conviction of the petitioner under Section 138 of Negotiable Instruments Act is not sustainable in the eyes of law, in as much as, the cheque which was issued by the petitioner was only by way of security and not against any legally payable debt. 6. The learned counsel for the petitioner has also submitted that the circumstances in which the cheque was issued were also brought on record by the petitioner and he has filed Exhibit-A before the learned court below, which was marked as exhibit without any objection from the side of the complainant. On the basis of Exhibit-A, the learned counsel submits that the cheque was issued by stating that the complainant was petty contractor under the petitioner and the cheque was to be honoured only after the work is completed and the petitioner receives payment from the department. The learned counsel submits that the learned court below has failed to consider that the petitioner had discharged his onus regarding the issuance of cheque and has failed to consider the case on the principles of preponderance of probabilities. He submits considering the plea raised by the petitioner, the learned courts below could not have convicted the petitioner. 7. The learned counsel submits that the learned court below has failed to consider that the petitioner had discharged his onus regarding the issuance of cheque and has failed to consider the case on the principles of preponderance of probabilities. He submits considering the plea raised by the petitioner, the learned courts below could not have convicted the petitioner. 7. The learned counsel for the petitioner has also submitted that one of the conditions for offence under Section 138 of Negotiable Instruments Act has not been satisfied in the instant case as the cheque was never issued in discharge of a debt or liability or any legally enforceable dues. The learned counsel has also submitted that the complainant has taken a plea that a friendly loan was given to the petitioner, but the petitioner had adduced evidence to show that the complainant was a petty contractor under the petitioner. Arguments on behalf of the opposite party 8. Learned counsel appearing on behalf of the opposite party, on the other hand, submits that the learned trial court has appreciated the Exhibit-A and recorded its independent finding on the said document and the plea of the petitioner was rejected by the learned court below by a well-reasoned judgment. He also submits that there is no scope for reappreciation of evidence in the revisional jurisdiction and to come to a different finding. He submits that there is no illegality or perversity in the impugned judgments of conviction of the petitioner. The learned counsel has also submitted that merely because the complainant is alleged to have stated that it was a friendly loan that does not absolve the petitioner of his liability under the cheque as there is legal presumption that the cheque once issued the same is issued in discharge of existing debt or liability. Findings of this Court 9. After hearing learned counsel for the parties, this Court finds that the complaint was filed by Deepak Kumar (opposite party no. 2) stating that the complainant and the petitioner were friends and on 26.02.2008, the complainant handed over Rs. 1 lakh to the petitioner on undertaking from the petitioner that he would refund the same within a period of two months and the petitioner issued a cheque dated 10.04.2008. The complainant repeatedly asked for return of the amount, but the petitioner avoided the payment. 1 lakh to the petitioner on undertaking from the petitioner that he would refund the same within a period of two months and the petitioner issued a cheque dated 10.04.2008. The complainant repeatedly asked for return of the amount, but the petitioner avoided the payment. Accordingly, the cheque was presented for encashment on 10.09.2008 which returned unpaid on 11.09.2008 on account of insufficient funds. A legal notice in connection with the bounced cheque was sent on 16.09.2008 under registered cover. The acknowledgement with registry slip were marked as Exhibit-4 and the legal notice was marked as Exhibit-5. The cheque was marked as Exhibit-1, deposit slip as exhibit-2 and return slip of cheque was marked as Exhibit-3. 10. In support of the prosecution case, two witnesses were examined. The complainant was examined as P.W. 1 and another witness namely Surendra Gupta was examined as P.W. 2. P.W. 2 has supported the prosecution case and deposed that the complainant had given friendly loan of Rs. 1,00,000/- to the petitioner. Consequently, the petitioner had issued post-dated cheque bearing the date as 10.04.2008. He has also stated that the petitioner had taken loan of Rs. 1,00,000/- for payment of labours with regard to the work done by the petitioner in G.T. Road and promised to repay the same when his bill is cleared. 11. The petitioner was examined under Section 313 of Cr.P.C. He admitted the issuance of cheque, but stated that he did not issue the cheque for repayment of any debt. However, the petitioner did not lead any defence evidence although in his statement under Section 313 Cr.P.C., he had mentioned that he would lead evidence. The petitioner was also granted repeated opportunity to lead defence evidence and ultimately, the defence evidence of the petitioner was closed. 12. However, at the time of cross-examination of the complainant, the petitioner had filed one document which was marked as Exhibit-A without any objection from the side of the complainant. The petitioner had stressed upon Exhibit-A before the learned court below to submit that the cheque was not issued in discharge of any debt. The case of the petitioner was that the Exhibit-A was under the writing of the complainant wherein it was mentioned that the complainant was working as a petty contractor under the present petitioner which was a work of P.W.D. department. The case of the petitioner was that the Exhibit-A was under the writing of the complainant wherein it was mentioned that the complainant was working as a petty contractor under the present petitioner which was a work of P.W.D. department. It was also mentioned in the said Exhibit-A that the petitioner was taking the cheque dated 10.04.2008 and after the completion of the work, receipt of the payment and final settlement of accounts, the complainant would present the cheque for encashment. On the basis of this document, it was argued on behalf of the petitioner that it was merely a proposal from the side of the complainant that after the completion of work, the cheque was to be encashed and accordingly, the cheque cannot be said to have been issued in discharge of any debt. 13. The learned trial court duly considered the Exhibit-A and found that the same did not contain the signature of the petitioner so as to prove that there was any agreement between the parties in connection with presenting the cheque. The learned trial court also found that nothing was mentioned in Exhibit-A as to whether the payment was to be made to the complainant or no further payment was to be made. The said plea of the petitioner on the basis of Exhibit-A that the cheque was not issued for payment of any debt, was rejected by the learned court below by considering the content of Exhibit-A and the fact that the same did not bear the signature of the petitioner. 14. The learned court below also considered the evidence of P.W. 2 who has stated that the cheque was given in his presence and an amount of Rs. 1,00,000/- was handed over to the petitioner by the complainant in his presence. This witness had further deposed that the petitioner issued a cheque of Rs. 1,00,000/- which was to be encashed when the petitioner would receive the amount from P.W.D. department. The learned court below was of the considered view that the issuance of cheque is not in dispute, but the specific case of the petitioner was that the cheque was not issued in discharge of any debt and the burden of proof was with the petitioner for which the petitioner had relied upon Exhibit-A, but there was nothing in Exhibit-A to show that the amount was ever returned to the complainant. 15. 15. The learned trial court, after considering the materials on record, found that basic ingredients for offence under Section 138 of Negotiable Instruments Act were duly satisfied and held the petitioner guilty of offence under Section 138 of Negotiable Instruments Act, 1881. 16. So far as the learned appellate court is concerned, the learned appellate court also considered Exhibit-A and recorded that the said letter does not bear the signature of the petitioner and none of the witnesses mentioned as witness to the letter (Exhibit-A) were examined by the petitioner. Accordingly held that no reliance could be placed on this document from the side of the petitioner. 17. It has been specifically argued by the learned counsel for the petitioner that the learned appellate court has erred in law in finding that no reliance can be placed on the Exhibit-A from the side of the petitioner particularly in view of the fact that the said exhibit was marked as exhibit without any objection from the side of the complainant and was a document signed by the complainant and accordingly, Exhibit-A was an admitted document. 18. This Court finds that even if the said document Exhibit-A is taken as the admitted document from the side of the complainant as well, its content has been thoroughly discussed by the learned trial court and after discussing its content, the learned trial court has clearly recorded that the Exhibit-A does not help the petitioner in any way whatsoever. This Court finds that even if Exhibit-A is taken into consideration, the same is admittedly not signed by the petitioner and is signed by the complainant, who claimed himself to be the petty contractor of the petitioner for the work which was allotted to the petitioner by P.W.D. department. From the perusal of the impugned judgments (Exhibit-A and evidence of P.W. 2), it appears that there was business relationship between the petitioner and the complainant and the complainant was executing the work as petty contractor. Further as per Exhibit-A the cheque of Rs. One Lakh was to be presented upon completion of work as and when the petitioner would receive the payment and account would get settled. Further as per Exhibit-A the cheque of Rs. One Lakh was to be presented upon completion of work as and when the petitioner would receive the payment and account would get settled. The learned trial court has held that Exhibit-A was only a proposal from the side of the complainant, but there being no signature of the petitioner, it could not be said that the petitioner and the complainant had entered into any agreement pursuant to Exhibit-A. 19. This Court also finds that P.W. 2 has claimed himself to be an eye-witness of the payment of Rs. One Lakh cash by the complainant to the petitioner, and the petitioner had promised that he would pay the amount to the complainant once his bills are cleared and the said amount was given as a friendly loan. Consequently, the petitioner gave the cheque dated 10.04.2008 to the complainant with an assurance that the amount would be paid to the complainant, but ultimately the same was not paid. 20. Admittedly, the petitioner did not even lead any defence evidence in spite of grant of opportunity by the learned court below and none of the witnesses whose name appeared as witnesses on Exhibit-A deposed before the court to explain the circumstances under which it was issued. On the other hand, the P.W. 2 is the eye-witness of the entire transaction and has explained the circumstances under which the cheque was issued by the petitioner to the complainant and has fully supported the prosecution case. From the records of the case, it appears that the P.W. 2 clearly deposed that cash of Rs. 1,00,000/- was handed over to the petitioner by the complainant in his presence and the petitioner had issued the cheque in lieu of the same. P.W. 2 has not only clearly stated that the petitioner had asked for One Lakh rupees from the complainant, but the petitioner had also stated that once the amount is received from the Department, the amount would be returned to the complainant. 21. This Court finds that although the learned appellate court has held that no reliance could be placed on Exhibit-A by the petitioner, but the learned trial court has fully considered the contents of Exhibit-A and found that the same could not help the petitioner in any manner. 21. This Court finds that although the learned appellate court has held that no reliance could be placed on Exhibit-A by the petitioner, but the learned trial court has fully considered the contents of Exhibit-A and found that the same could not help the petitioner in any manner. This Court finds that the petitioner has failed to discharge his initial burden to prove that the cheque was not issued in discharge of any liability and the petitioner could not discharge the said burden even by referring to Exhibit-A. 22. Considering the aforesaid facts and circumstances, this Court is of the considered view that the basic ingredients for offence under Section 138 of Negotiable Instruments Act, 1881 were duly satisfied and the learned court below has not committed any error in rejecting the plea of the petitioner based on exhibit-A. Accordingly this Court does not find any reason to interfere with the conviction and sentence of the petitioner in its revisional jurisdiction. Hence, this criminal revision petition is dismissed. 23. Interim order, if any, stands vacated. 24. Bail bond furnished by the petitioner is cancelled. 25. Pending interlocutory application, if any, is dismissed as not pressed. 26. Let the Lower Court Records be immediately sent back to the court concerned. 27. Let a copy of this order be communicated to the learned court below through ‘FAX/e-mail’.