This criminal revision has been filed assailing the judgment dated 12.02.2024 passed in Criminal Appeal No.71 of 2023 by Ist Additional Sessions Judge, Dabra, District Gwalior (M.P.) whereby, the judgment dated 26.07.2023 passed by Judicial Magistrate First Class, Dabra, District Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/20/2024 5:36:11 PM 2 Criminal Revision No.770 of 2024 Gwalior (M.P.) in N.C.N.I Act No. 310/2018 was affirmed, whereby the petitioner/accused was convicted and sentenced under Section 138 of NI Act to undergo R.I. for six months with fine of Rs.9,62,000/-with default stipulations.

2. For the sake of convenience respondent-Ranjeet Singh will be addressed as complainant and petitioner - Yudhisthir Kumar Sharma as accused hereinafter.

3. The facts in brief are that the complainant filed a complaint under Section 138 of N.I. Act alleging that complainant and accused were having cordial and friendly relationship, therefore, on demand of accused, complainant gave Rs.7,00,000/- to the accused for treatment of his wife as a loan with interest @ Rs.2 per hundred rupees. The said money was given on 17.02.2017 and was promised to be return by April, 2018. However, the accused did not pay the principal amount as well as interest in the prescribed time. Thereafter, to acknowledgment debt, one cheque dated 27.09.2018 bearing No. 038067 of ICICI Bank was issued to the complainant, by the accused. When the said cheque was presented in the bank, it was dishonored with an endorsement "insufficient fund". Complainant upon receiving the said endorsement, sent a notice to the accused, however, accused did not pay the amount taken as loan. After prescribed time, the complainant filed the complaint before the competent Court under Section 138 of N.I. Act. Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/20/2024 5:36:11 PM 3

Criminal Revision No.770 of 2024

4. The learned trial Court after taking evidence and hearing the parties on merits convicted the accused under Section 138 of N.I. Act by judgment dated 18.10.2022. The accused filed an appeal bearing No. 345 of 2012 which was dismissed by learned IIIrd Additional Sessions Judge on 24.01.2023. Thereafter, petitioner filed criminal revision before this Court which was registered as Cr.R. No. 1655 of 2023, and was decided by the Co- ordinate Bench of this Court vide order dated 09.05.2023 wherein, the Co- ordinate Bench of this Court has set aside the order dated 24.01.2023 and 18.10.2022 passed by learned trial Court as well as learned appellate Court respectively and remanded the matter back to learned trial Court with a direction to give opportunity to respondent/complainant to adduce the evidence in regard to service of notice to accused.

5. Learned trial Court after giving opportunity to the respondent to adduce the evidence in respect to service of notice and to petitioner for rebuttal, convicted the petitioner/accused under Section 138 of N.I. Act and sentenced him to undergo rigorous imprisonment for six months and also directed to pay compensation of Rs.9,62,000/- under Section 357(3) of Cr.P.C. with default stipulation.

6. Being aggrieved, the petitioner/accused filed an appeal bearing Cr.A. No.71/2023 before the learned First Additional Sessions Judge, Dabra District Gwalior. The learned appellate Court vide impugned judgment dated Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/20/2024 5:36:11 PM 4 Criminal Revision No.770 of 2024 12.02.2024 affirmed the judgment dated 26.07.2023 passed by the learned trial Court, against which, the present revision is filed.

7. Counsel for the petitioner argued that the order impugned is ex-facie, illegal and bad in law and contrary to the record available. It is further argued that the complainant in earlier round of litigation only exhibited the documents Cheque/(Ex.P/1), return memo/(Ex./P/2), Notice dated 03.10.2018/(Ex.P/3) and postal receipt dated 03.10.2018/(Ex.P/4), however, after passing the order dated 09.05.2023, respondent exhibited the document delivery report (Ex.P/5). It is further submitted that Ex.P/5 is a forged document having forged seal and sign and the same has not been proved in accordance with law. Further submission is that any affordable opportunity has not been granted by learned trial Court to refuted the said document i.e. Ex.P/5. The learned Appellate Court has also not dealt with the application filed under Section 76 of Evidence Act. The learned trial Court as well as learned Appellate Court have miss-interpreted the law laid down by Apex Court while convicting the accused. It is further submitted that the findings of learned trial Court in respect to Ex.P/5 is based on conjecture and surmises and also beyond the scope of law. Further submission is that the complaint is pre mature in light of the provision of N.I. Act . The witnesses examined by the complainant are pocket witnesses. The complainant has failed to remove the suspicious circumstances. Under these circumstances, Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/20/2024 5:36:11 PM 5 Criminal Revision No.770 of 2024 the impugned judgments be set aside and the petitioner be acquitted from the charges under Section 138 of N.I. Act and the amount deposited to complainant be refunded.

8. Learned counsel for respondent submits that after due appreciation of evidence, learned Court below has found the offence proved against the petitioner, which requires no interference. It is submitted that the revision filed by the petitioner be dismissed.

9. Heard counsel for the rival parties and perused the record.

10. In the case of Bir Singh vs Mukesh Kumar AIR 2019 Supreme Court 2446 the Apex court held that:-

11. In view of the above settled principle of law while examining this case it is found that the complainant has examined himself as PW/1, Rajendra Singh as PW/2 and Gurudayal Singh as PW/3 who have supported the case of the complainant in respect to issuance of cheque/(Ex.P/1) by the accused and his sign on it. On the basis of evidence adduced, it is apparent that the accused has failed to prove that the cheque was not signed by him, and therefore, the presumption under Section 139 and 118 of N.I. Act has rightly been made by the learned trial Court in light of the aforesaid principle of law.

12. Rajendra Singh/(PW/2) and Gurudayal Singh/(PW/3) in their statements corroborated the factum of transaction between complainant and Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/20/2024 5:36:11 PM 7 Criminal Revision No.770 of 2024 accused in respect to loan taken by the accused. The record reveals that the name of Rajendra Singh was mentioned in the list of witnesses. Therefore, there is no reason to disbelieve his statement. Moreover, in the light of the case of Steeltube Vs. Steel Authority, 2006, Cr.L.J. 1988, in the case of dishonor of cheque each and every details of transaction in respect to cheque is not required.

13. Counsel for the petitioner-accused vehemently argued that the document in respect to track consignment (Ex. P/5) is forged document and therefore, the delivery of notice on accused is not proved. However, above argument has no weight because Ex. P/5 has been signed by the Post Master after putting the seal on it. The record further reveals that in earlier round of litigation, the copy of Ex. P/5 has been placed, however, on the objection of accused, the same was not taken on record. Ex. P/5 has been signed and seal has been put on it. Since Ex.P/5 which is a track consignment had already been placed on the record, therefore, the argument of petitioner is not acceptable that the same is forged.

14. Counsel for the petitioner-accused argued that Sachin/(DW/2) who is the son of petitioner-accused had received information from post office by filing RTI application Ex.D/2 and D/4 which indicate that the notice was not delivered on accused. However, the information in respect to Ex. D/3 by which the son of accused (Sachin/DW/2) had sought the information in Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/20/2024 5:36:11 PM 8 Criminal Revision No.770 of 2024 respect to the name of the officer who signed the delivery report, date of delivery and other details had not been filed. Thus, learned trial Court has rightly held that if the said information had been filed, the same would be against the petitioner-accused in respect to delivery of notice.

15. Counsel for the petitioner has cited the case of Rajaram (since deceased) through LRs. Vs. Maruthachalam (since deceased) through LRs. reported in 2023(244)AIC 61 and argued that the financial capacity of complainant was not such that he would give loan of Rs.7,00,000/-, however, the facts and circumstances in aforesaid cases are different for this case. In this case at the time of recording of evidence the complainant was having the documents relating to agricultural lands of his ownership therefore, his contention that he being an agriculturist was having sufficient funds cannot be disbelieved. Moreover, as discussed above since the signature of petitioner/accused on the cheque is proved, therefore, merely on the basis of the fact that complainant did not file document to show his financial capacity the whole case cannot be disbelieved in the light of provision of Section 139 of Negotiable Instruments Act, which mandates that unless the contrary is proved, it is to be presumed 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. The presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/20/2024 5:36:11 PM 9

Criminal Revision No.770 of 2024 However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque.

16. Learned counsel for the petitioner has also argued that learned appellate Court has not considered the application filed under Section 76 and 78 of Indian Evidence Act in respect to taking the additional evidence on record i.e. the information receipt in respect to RTI application. However, above argument is not acceptable in the light of provisions of Section 76 and 78 of Indian Evidence Act which provide as below:

18. For the sake of convenience Section 78 of Evidence Act reads as below:-

by the records of the departments, certified by the head of those departments respectively, or by any document purporting to be printed by order of any such Government 3[ or, as the case may be, of the Crown Representative]; (2) the proceedings of the Legislatures, --

by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed 3[ by order of the Government concerned];

(3) proclamations, orders or regulations issued by [Her Majesty] or by the Privy Council, or by any department of [Her Majesty's] Government, --

by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer;

(4) the Acts of the Executive or the proceedings of the Legislature of a foreign country --

by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some5[Central Act]:

by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;

(6) public documents of any other class in a foreign country,

by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of 7[an Indian Consul] or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country."

19. Since above provisions do not deal with taking additional evidence on record, therefore, the argument of the petitioner is not acceptable that he was not provided the opportunity to file additional evidence.

20. Counsel for the petitioner further argued that the complaint is premature, therefore, is liable to be set aside. In support of his contentions, Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/20/2024 5:36:11 PM 11 Criminal Revision No.770 of 2024 he has placed reliance upon the judgment passed by Hon'ble Supreme Court in the case of Subhdh S. Salaskar Vs. Jayprakash M. Shah and Another , ( 2008) 13 SCC 689 and Yogendra Pratap Singh Vs. Savitri Pandey , (2014) 10 SCC 713, however, the facts mentioned in that case are different from this case. In this case the cheque was received with the note insufficient fund on 28.09.2018. Ex. P/3 and Ex.P/4 prove that notice of demand was sent on 03.10.2018 and Ex.P/5 track consignment proves that notice has been received on 15.10.2018. Present complaint has been filed on 02.11.2018, therefore, learned Trial Court has rightly held that under Section 142(B) of the Act and proviso of Section 138 (C) of the Act the cause of action has been accrued on 31.10.2018 to the complainant who has filed this complaint after 31.10.2018 on 02.11.2018.

21. Learned counsel for the petitioner further argued that re-examination of the respondent witness to prove delivery of notice is contrary to law and just to fulfill the lacuna the same cannot be done. However, above argument is not acceptable because the above exercise has been done after direction of this court which has not been challenged by the petitioner in any court of law.

22. In view of above discussion, this Court is of the view that no illegality has been committed by the learned Courts below in convicting the petitioners, hence the judgment of conviction passed by the learned Courts Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/20/2024 5:36:11 PM 12 Criminal Revision No.770 of 2024 below requires no interference and the same is hereby maintained.

23. Consequently, present revision petition is hereby dismissed. No order as to costs.

(SUNITA YADAV) JUDGE LJ* Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/20/2024 5:36:11 PM