HON’BLE MR JUSTICE R. KANTHA RAO Criminal Revision Case No.1075 OF 2004 DATED: 23.09.2011 BETWEEN: Suresh Agarwal .. Petitioner And State of A.P. and another .. Respondents HON’BLE MR JUSTICE R. KANTHA RAO Criminal Revision Case No.1075 OF 2004 JUDGMENT: This criminal revision case is filed against the judgment dated 01.07.2004 passed by the II Additional Sessions Judge, (Fast Track Court), Adilabad in Crl.A.No.39 of 2002 confirming the judgment dated 17.05.2002 passed by the Special Judicial Magistrate of First Class, Excise, Adilabad in C.C.No.40 of 2000. 2. The petitioner was tried for the offence under Section 138 of the Negotiable Instruments Act by the Judicial Magistrate of First Class, Adilabad on a complaint filed by the second respondent and was convicted for the offence under Section138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.5,000/-. 3. In Criminal Appeal No.39 of 2002 filed by the revision petitioner, the learned II Additional Sessions Judge (F.T.C.), Adilabad confirmed the order of conviction and sentence passed by the learned Magistrate. Feeling aggrieved, the revision petitioner preferred the present criminal revision case. 4. I have heard Sri Sharad Sanghi, learned counsel appearing for the revision petitioner and the learned Additional Public Prosecutor representing the State. Though served with notice, none appeared for the second respondent. 5. The short facts require for considering the present criminal revision case are as follows: According to the version of PW.1, the complainant-revision petitioner on 25.11.1999 borrowed an amount of Rs.1,50,000/- from him agreeing to repay the same within a month and also issued a cheque for an amount of Rs.1,50,000/- on the same day towards security for the loan borrowed. The said transaction is not evidenced by any document and according to the complainant, the amount was borrowed in the presence of one Prakash Jain. 6. It is the version of the complainant that when he presented the cheque for collection on 28.12.1999, basing on the instructions of the revision petitioner to present the cheque after one month, it was dishonoured on the ground of insufficient funds. Subsequently, after issuing notice, the second respondent filed a complaint under Section 138 of the Negotiable Instruments Act. 7. In the course of the trial before the learned Magistrate, the complainant in order to prove the case against the revision petitioner examined himself as PW.1 besides examining two more witnesses as PWs.2 and 3 and marked Exs.P.1 to P.6. The accused himself was examined as DW1 besides examining one Ravindrakumar Agarwal as DW.2. The learned Magistrate basing on the said evidence convicted the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the II Additional Sessions Judge, (Fast Tract Court), Adilabad. 8. Now the point for determination in this revision case is whether there are any valid grounds to interfere with the order of acquittal passed by the learned Magistrate which is confirmed in appeal by the learned II Additional Sessions Judge? 9. In the complaint itself, PW.1 made a mention that on the same day an amount of Rs.1,50,000/- was borrowed, the revision petitioner issued a cheque for the same amount as security for the loan borrowed. But, in Ex.P.4, notice dated 07.01.2000 issued by him, PW.1 got it mentioned that the cheque was issued towards repayment of debt. But, in the chief examination, PW.1 has stated categorically that the cheque was issued for security for the loan borrowed. The defence version is that no amount was borrowed from the second respondent by the revision petitioner. Both the Courts below recorded conviction merely basing on the fact that the said cheque was issued by the revision petitioner and the same was dishonoured. 10. It is true that there is a presumption in favour of the second respondent-complainant under Section 139 of the Negotiable Instruments Act that the said cheque was issued towards legally enforceable debt or liability, but the presumption is rebuttalble presumption and the accused can rebut the presumption either by adducing positive evidence or basing on the material available on record such as the averments in the complaint and the evidence of the witnesses examined by the prosecution. In the instant case, in the complaint itself it was mentioned that the said cheque was issued towards security for the loan borrowed. PW.1 also stated in his deposition that the cheque was issued as security towards loan borrowed by the revision petitioner. When a cheque was issued as security, the revision petitioner/accused is not liable for prosecution under Section 138 of the Negotiable Instruments Act despite the fact that it was dishonoured. Further, the second respondent did not adduce any evidence in proof of the fact that the revision petitioner borrowed Rs.1,50,000/- from him. One Prakash Jain, who was allegedly present at the time of borrowing the amount by the revision petitioner from the second respondent was cited in the complaint as witness, but was not examined by the second respondent. Due to his non-examination, an adverse inference against the case of the second respondent can be drawn. Further, it is highly unconvincing to state that on the date of borrowing amount of Rs.1,50,000/- itself, the revision petitioner issued a cheque for the same amount in favour of the second respondent. 11. For the reasons aforementioned, the revision petitioner could be able to successfully rebut the presumption available to the second respondent under Section 139 of the Negotiable Instruments Act. The conviction recorded by the learned Magistrate, which was confirmed by the learned Additional Sessions Judge is illegal and unsustainable. Consequently, the conviction and sentence passed by the II Additional Sessions Judge, (Fast Track Court), Adilabad in Crl.A.No.39 of 2002 confirming the judgment dated 17.05.2002 passed by the Judicial Magistrate of First Class, Excise, Adilabad in C.C.No.40 of 2000 are set aside. The revision petitioner is acquitted of the offence under Section 138 of the Negotiable Instruments Act. The appeal succeeds and accordingly, it is allowed. __________________ Date: 23.09.2011 R. KANTHA RAO, J Kvrm HON’BLE MR JUSTICE R. KANTHA RAO Criminal Revision Case No.1075 OF 2004 DATE: 23.09.2011