JUDGMENT : 1. The petitioner brought a complaint case against the respondent no.1 Sushila Devi bearing Criminal Original Case No.181/1994 under Section 138 of the Negotiable Instruments Act, 1881. 2. The case and claim of petitioner as disclosed in the complaint petition was that the petitioner sold 100 Tins of Oil to respondent no.1 vide bill No.186 dated 18.3.1994. The total cost was Rs.40,600/- @ Rs.406/- per Tin. The respondent no.1 was owner of Sushila & Co. On 23.3.1994 respondent no.1 had issued cheque no.941529 of Rs.40,600/- as payment of cost of Oil. The respondent no.1 had assured that the cheque would be honoured on its presentation. The petitioner presented the cheque with Bank of India, Jodhpur Branch on 23.3.1994. On 25.3.1994 the cheque was returned by the Bank on the ground that funds were insufficient in the account. Thereafter the petitioner send a notice to the respondent no.1 on 06.4.1994 asking for payment of the amount of cheque. On 9.4.1994 respondent no.1 sent a reply to the notice stating therein that she has not purchased any Oil from the petitioner and her signed cheques were misused by her employee Raju Manvani, to whom the respondent no.1 had handed-over signed cheques for the use of the firm. 3. The petitioner examined himself during trial as PW-1 and deposed about what the petitioner had stated in the complaint petition and proved the bounced cheque, which was marked as Exhibit-1. Exhibit-2 was the return of cheque by the bank for insufficient fund. Exhibit-3 was notice dated 06.4.1994 and Exhibit-6 was the reply of respondent no.1 dated 9.4.1994. The petitioner further examined Raju Manvani as witness no.2, who specifically asserted that he had not issued the dishonoured cheque to the petitioner nor he had misused the cheque in collusion with the petitioner. The respondent no.1 did not appear in the witness-box, however, in her statement under Section 313 Cr.P.C., she admitted her signature on the cheque and asserted that it was filled by Raju Manvani. PW-2 Raju Manvani has admitted that he had filled the cheque at the instructions of respondent no.1. Raju Manvani denied that he was employee of Sushila & Co., and he asserted that he was Proprietor of his own firm. 4. On behalf of respondent no.1 Mr. Shyam Lal, the husband of respondent no.1 was examined as DW-1. PW-2 Raju Manvani has admitted that he had filled the cheque at the instructions of respondent no.1. Raju Manvani denied that he was employee of Sushila & Co., and he asserted that he was Proprietor of his own firm. 4. On behalf of respondent no.1 Mr. Shyam Lal, the husband of respondent no.1 was examined as DW-1. He has deposed that he was looking after the business of Sushila & Co., and under an agreement had appointed Raju as Commission Agent and he was given custody of signed cheques and other documents of the firm, which he misused. In the year 1994 there was a dispute with Raju Manvani for accounts of Sushila & Co., which led to surface of misuse of cheque by Raju Manvani. In cross-examination DW-1 admitted that the cheques of Sushila & Co., which were handed-over to Raju Manvani was voluntarily handed-over under an impression that Raju Manvani would work on behalf of the firm. However, this witness expressed ignorance about supplied Oil to Sushila and firm or from which it had purchased the Oil tins. The witness is specific that he had not seen accounts of Sushila & Co., of the year 1993 and he has no knowledge that Sushila & Co., had purchased oil from the petitioner’s firm M/s. Vandana Industries, Jodhpur. Thus, this witness who claims to be looking after affairs of the firm on behalf of his wife Sushila appears to be unaware of deal with the petitioner. The witness has not deposed that he was sure that no deal with the petitioner regarding purchase of Oil tin was ever made. 5. On the basis of material aforesaid, the learned trial Judge convicted respondent no.1 and imposed only fine of Rs.25,000/-, out of which, Rs.20,000/- was payable to the petitioner as compensation. 6. The convict respondent no.1 challenged the conviction in Criminal Appeal No.73/1999 before the learned Sessions Judge. The petitioner challenged legality of the sentence in Criminal Revision No.24/1999. Both the matters were jointly heard and by the impugned judgment dated 27.2.2002 the appeal was allowed and the conviction was set aside. Due to setting aside of conviction, the revision was dismissed as being devoid of merit by one sentence order in Para-23 of the impugned judgment dated 27.2.2002. 7. Both the matters were jointly heard and by the impugned judgment dated 27.2.2002 the appeal was allowed and the conviction was set aside. Due to setting aside of conviction, the revision was dismissed as being devoid of merit by one sentence order in Para-23 of the impugned judgment dated 27.2.2002. 7. The appellate was of the view that it was duty of the petitioner to show bill whereunder sale of Oil was claimed and in absence of bill the petitioner-complainant failed to prove that the cheque was issued against any outstanding dues. The lower appellate court further disbelieved case of the complainant on the ground that the complainant stated that Sushila was doing business in her own residential premises, which was contradicted by the fact that home address of Sushila was mentioned at some distant place whereas business place was at a different place in the same town of Jodhpur. 8. The question arise herein is :- (1) Whether the appellate court has acted with material irregularity and illegality in assuming burden of proof of outstanding due on the complainant in the facts and circumstances of this case ? and (2) Whether the appellate court failed to consider in the Criminal Revision filed by the petitioner that the sentence awarded is illegal inasmuch as it is not consistent with the requirement of minimum punishment under Section 138 of the Negotiable Instruments Act ? 9. Learned counsel for the petitioner has relied on the judgment of Hon’ble Supreme Court in Rajesh Jain Vs. Ajay Singh, reported in AIR 2023 SC 5018 in support of his submission that once complainant proved the requirements of Section 138 of the Negotiable Instruments Act, the burden would shift under Section 139 of the Negotiable Instruments Act, 1881 on the accused to prove that the cheque was not issued for payment against outstanding dues. 10. The provisions of Section 138 & Section 139 of the Negotiable Instruments Act, 1881 are being reproduced below for better appreciation of the facts :- “138. 10. The provisions of Section 138 & Section 139 of the Negotiable Instruments Act, 1881 are being reproduced below for better appreciation of the facts :- “138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 4 [a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, 5 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.—For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.” “139. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that 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.” 11. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that 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.” 11. Learned counsel for the respondent no.1 contends that this Criminal Revision against the common order dated 27.2.2022 passed in Criminal Appeal No.73/1999 and Criminal Revision No.24/1999 is not maintainable; rather separate petition should have been filed by the petitioner. He next contends that the finding of the learned lower appellate court is based on the material available on the record and hence in exercise of revisional jurisdiction this Court should not lightly interfere with that. 12. In Para-26 of Rajesh Jain’s case (supra) the Hon’ble Supreme Court referred earlier judgment and the requirements to prove offence under Section 138 of the Negotiable Instruments Act as follows :- “26. In Gimpex Private Limited vs. Manoj Goel, this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure: (1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account; (i) The cheque being drawn for the discharge in whole or in part of any debt or other liability; (iii) Presentation of the cheque to the bank arranged to be paid from that account, (iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount (v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and (vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.” Hon’ble Supreme Court has further held in Para-27 & 28 as follows :- 27. In K. Bhaskaran v. Sankaran Vaidhyan Balan this Court had summarised the constituent elements of the offence in fairly similar terms by holding: “14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice.” 28. The five (5) acts as set out in K Bhaskaran's case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex's case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability. Burden of Proof and Presumptions: Conceptual Underpinnings” 13. Evidently the petitioner by his oral evidence asserted that the cheque was issued for discharge of liability to pay the dues of purchased oil. The cheque was presented to the bank and was returned back due to insufficiency of funds on 25.3.1994 vide Exhibit-2. The petitioner send a notice of dishonour of cheque requesting for payment of cheque amount on 06.4.1999. the respondent no.1 failed to make payment of the cheque amount within 15 days, as such, the basic ingredients of Section 138 of the Negotiable Instruments Act are proved by the petitioner. The petitioner send a notice of dishonour of cheque requesting for payment of cheque amount on 06.4.1999. the respondent no.1 failed to make payment of the cheque amount within 15 days, as such, the basic ingredients of Section 138 of the Negotiable Instruments Act are proved by the petitioner. Now, after introduction of a presumptive device under Section 139 of the Negotiable Instruments Act, 1881 as referred above, the onus reverses on the accused to prove non-existence of the fact that the cheque was issued for discharge of a debt/ liability. The respondent-accused admitted her signature on the cheque but did not appear in the witness-box to discharge the reverse burden. Her husband DW-1 claims to have been looking after the business of Sushila & Co., but failed to discharge this burden by producing books of accounts etc. or folio of cheque-book as to against which head the cheque was issued or in fact there is entry of purchase of 100 Tins of Oil in the books of accounts or not, rather simply conveyed evasive reply that he is not aware of the fact that whether Sushila & Co., had purchased 100 Tins of Oil from the petitioner, therefore, the accused evidently failed to discharge the burden to prove that the cheque was not issued against existing debt. 14. The learned appellate court has mis-construed the law that burden of proof was on the complainant. Further, the appellate court has travelled beyond the scope of proof of charge under Section 138 of the Negotiable Instruments Act by finding fault that the residential address of accused is different than her business premises. The accused not has denied that she has business at the referred premises. 15. The observation of the Hon’ble Supreme Court in Para-35 to 38 of Rajesh Jain’s case (supra) fortifies claim of the petitioner that the petitioner had proved the case beyond reasonable doubt against the respondent no.1. Those paragraphs are being reproduced below :- “35. Section 139 of the NI Act, which takes the form of a ‘shall presume’ clause is illustrative of a presumption of law. Because Section 139 requires that the Court ‘shall presume’ the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. Because Section 139 requires that the Court ‘shall presume’ the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. The rules discussed hereinbelow is common to both the presumptions under Section 139 and Section 118 and is hence, not repeated-Reference to one can be taken as reference to another But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase ‘unless the contrary is proved’. 36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [ (1999) 3 SCC 35 ] 37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar]. Therefore, mere admission of the drawer's signature, without admitting the execution of (2019) 4 SCC 197 the entire contents in the cheque, is now sufficient to trigger the presumption. 38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.” 16. Evidently the judgment of appellate court in Criminal Appeal No.73/1999 suffers from misconstruction and misinterpretation of law. Hence it is hereby set aside and the matter is remitted back for reconsideration according to law. 17. Evidently the judgment of appellate court in Criminal Appeal No.73/1999 suffers from misconstruction and misinterpretation of law. Hence it is hereby set aside and the matter is remitted back for reconsideration according to law. 17. A bare perusal of provisions of Section 138 of the Negotiable Instruments Act referred above makes it crystal clear that for the offence under the said provision, the punishment would be imprisonment for a term which may extend to two years’ or with fine which may extend to twice the amount of the cheque, or with both. In the case on hand, the trial Judge has awarded sentence only but the sentence cannot be less than the cheque amount. It may extend to twice the cheque amount. Since the trial Judge has not passed minimum sentence consistent with the law, the same is revisable one, hence, dismissal of Criminal Revision No.24/1999 stands set aside and it is restored before the appellate court, who shall pass order according to law considering propriety of sentence. 18. Technically the petitioner should have challenged the common impugned order separately as the said order was passed in above referred criminal appeal as well as criminal revision petition. The court can pass a common order in two matters connected with each other but it should be challenged by filing separate petitions. However, the aforesaid technicality would not fetter the powers of this Court under Section 397 Cr. P.C., to suo moto take cognizance and revise, if any illegality or correctness in the proceedings before the inferior criminal court, comes to the notice of Court. The illegality in the order of criminal revision as noticed above is now to the notice of this Court through the impugned order, hence, correctness of the same can be remedied in this petition itself. 19. Consequently, this criminal revision is allowed, as directed above.