IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 206 of 2004 Krishan …Revisionist Versus State of Uttaranchal and another …Respondents Mr. S.K. Mandal, Advocate present for the revisionist. Mr. M.A. Khan, Brief Holder present for the State of Uttarakhand. Mr. D. Barthwal, Advocate present for respondent no. 2. Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. S.K. Mandal, Advocate for the revisionist, Mr. M.A. Khan, Brief Holder for the State of Uttarakhand and Mr. D. Barthwal, Advocate for respondent no. 2. 2. The revisionist had filed a complaint before the Chief Judicial Magistrate, Rudrapur under Section 138 of the Negotiable Instruments Act, 1881 alleging that a cheque drawn by accused/respondent no. 2 for a sum of ` 50,000/- (` Fifty Thousand Only) has been dishonoured. All the steps as well as procedure prescribed under Section 138 of the Negotiable Instruments Act, 1881 were adopted by the revisionist and when the time period prescribed under the law expired and the money was not returned, the revisionist/complainant was constrained to file a compliant. Accused/respondent no. 2 had taken two defence; one was that there has been no sufficient service to him and the second was that the cheque was not taken as debt as given under Section 138 of the Negotiable Instruments Act but it was given as a guarantee. In paragraph-2 of the reply given before the courts below is that the complainant himself had taken a lot of loan from various sources and since he was being pressurized from all corners he came to the 2 accused and stated that he be given him a cheque of ` 50,000/- (` Fifty Thousand Only) to show to his creditors that he has funds so that they may not be harassed. The trial court, however, rejected the complaint on the ground that there was no service upon the accused and secondly the cheque has not been given as a debt but it relied upon the statement of PW-1 (i.e., the complainant) stated that he had given cash to the accused and thereafter the accused gave him a cheque in order to guarantee. Here guarantee has been used in a very loose manner by the revisionist, it certainly does not mean that the amount of money so given was not “for payment of debt or any other liability”. No such conclusion can be drawn as yet. Definitely the court below could not have dismissed the case of the complainant on the grounds on which has been done. 3. The Hon’ble Apex Court in the case of K.N. Beena Vs. Manuyappan & Anr reported in [(2001) 8 SCC 458] has clearly held that in view of Sections 118 (a) and 139 of the Negotiable Instruments Act, the burden of proof in such case solely lies with the accused and in rare cases the onus shifts on the complainant. There is presently no occasion to accept the submission of the accused/respondent no. 2 that the onus is on the revisionist. 4. As such, the revision is allowed. The matter is remanded to the trial court. 5. Since Section 142 of the Act itself prescribes expeditious disposal of such cases, the trial court is 3 directed to dispose of the matter within the stipulated period of time as prescribed under Section 143 of the Negotiable Instruments Act, 1881. 6. No order as to costs. (Sudhanshu Dhulia, J.) Dated: 8.12.2011 Virendra