U.C. Maheshwari, J. (Oral):

1. The applicant/accused has preferred this revision being aggrieved by the judgment dated 24-1-2008 passed by 13th Additional Session Judge, Jabalpur in Cr. Appeal No. 557/07, affirming the judgment dated 17-11-2007 passed by Special Judicial Magistrate 1st Class, Jabalpur in Criminal (Complaint) Case No. 27358/06, filed by the respondent No. 2, convicting the applicant under section 138 of Negotiable Instruments Act (In short "the Act") with fine of र 1,45,000/- in default of depositing the fine amount for three months simple imprisonment with a direction that out of the fine amount र 1,35,000/- be given as compensation to the respondent No. 2.

2. The facts giving rise to this revision in short are that respondent No. 2 herein filed a private complaint against the applicant in the trial Court contending that the applicant being his good friend was in need of some money for education and employment of his son in some foreign country in this regard on making demand by the applicant from him he gave a loan of र 2,00,000/- from him. Besides this र 1,00,000/- was also taken by the applicant from him on the death of his wife to carry out her last rite. In consideration of such sum applicant gave him three different cheques of his account to repay the same. Out of them one cheque bearing No. 052001 dated 30-12-2004 for र 1,00,000/- was deposited by the respondent No. 2 with his Banker on 10-1-2005 for its collection, the same was returned by the Banker as dishonored with a memo having the endorsement of insufficient fund in the account of the applicant. Thereafter in spite service of demand notice on the applicant neither the consideration of such cheque nor any reply of the same was given by the applicant, on which within the prescribed period provided under the Act the impugned complaint was filed, in which by adopting the procedure prescribed under sections 200 and 202 of Criminal Procedure Code the cognizance of the aforesaid offence of section 138 of the Act was taken by the trial Court against the applicant, on his appearance the trial was held. On appreciation of evidence the applicant was convicted and sentenced as stated above. On filing the appeal the same was dismissed, on which the applicant has come to this Court with this revision.

3. Shri Sanjay Sanyal, learned appearing counsel of the applicant after taking me through the record of the Courts below including the impugned judgment argued that the alleged transaction being a loan transaction the remedy to recover the sum of disputed cheque by way of Civil suit was available to the respondent No. 2 and therefore the Courts below did not have jurisdiction to entertain the impugned complaint to convict the applicant. In continuation he said that the overwriting part of the disputed cheque and apparent difference of the applicant's signature on the disputed cheque with his specimen signature kept in the record of his banker was also not considered by the Courts below with proper approach. It is also argued that disputed cheque along with some others was missed from the custody of the applicant for which he also lodged the FIR and the same was produced and proved. In such premises also the Courts below ought to have held that the alleged cheque was never issued by the applicant with his signature for any valid consideration. In this connection he also argued that the applicant is always used to sign the cheque in English and not in Hindi language but such aspect was neither considered by the Courts below with proper approach nor sufficient opportunity to prove such fact was given to him by the trial Court, and prayed for allowing this revision.

4. On the other hand Shri Ajit Singh Jatav, learned counsel of the respondent No. 2 by justifying the findings of the impugned judgment holding conviction against the applicant said, the same being based on proper appreciation of evidence and in conformity with law does not require any interference at this stage for extending the benefit of acquittal to the applicant and prayed for dismissal of this revision.

5. Having heard the counsel keeping in view their argument, I have carefully gone through the record of the Courts below along with the impugned judgment.

6. It is apparent from the memo issued by the banker having the endorsement the impugned cheque was dishonored because of insufficient fund in the account and not because of difference of applicant's signature on the same. The Courts below on appreciation taking into consideration such factual aspect had overruled such objection of the applicant. Besides this the findings of the Courts below holding there is no overwriting and difference of the signature of the applicant on the cheque being based on appreciation of available evidence does not require any interference under the revisional jurisdiction of this Court, hence all the arguments of the applicant's counsel in this regard are hereby rejected.

7. So far other argument advanced by the applicant's counsel that the impugned transaction being loan transaction the remedy of civil suit to recover such sum was available to respondent No. 2 is concerned, such argument has also not appealed me because apparently the impugned transaction being transaction of cheque is squarely covered with the alleged provision of the Negotiable Instruments Act. In such premises in the available factual matrix of the case the respondent No. 2 could not have been restrained to prosecute the impugned complaint against the applicant by any of the Courts below. Therefore, on the ground that the impugned transaction was a civil transaction, it could not be held that the criminal Court did not have jurisdiction to entertain the impugned private complaint of the respondent No. 2 against the applicant. So such argument of the applicant's counsel is also failed.

8 . Apart the above, I would like to mention here that after dishonoring the cheque on account of insufficient fund in the account of the applicant, in spite service of demand notice of respondent No. 2 on the applicant neither the consideration was paid nor any explanation in this regard by way of reply was given to the respondent No. 2. Such circumstances are also sufficient to draw the inference that aforesaid defence as argued by the applicant's counsel that there was differenc

e in the signature of the applicant between the cheque and specimen signature in the record of his Banker or the cheque was missed or stolen are being afterthought are not helping to the applicant. 9. In the aforesaid premises, I have not found any perversity, infirmity, illegality or anything against the propriety of law in appreciation of evidence and also in considering the existing legal position in the impugned judgment by the Courts below for holding conviction and imposing the punishment against the applicant under the above mentioned offence. Hence, this revision being devoid of any merits deserves to be and is hereby dismissed at the stage of motion hearing. Revision dismissed.