Swarana Kanta Sharma JUDGMENT
Swarana Kanta Sharma, J.
1. The instant petition under Section 397 read with Section 401/482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.') has been filed on behalf of petitioner seeking setting aside of judgment dated 12.09.2018 passed by learned Additional Sessions Judge-02, (East), Karkardooma, Delhi whereby the Criminal Appeal No. 38/2018 filed by the petitioner was dismissed.
2. In the present case, the petitioner vide judgment dated 09.03.2018 was convicted for offence under Section 138 of Negotiable Instruments Act, 1881 ('NI Act') by learned Metropolitan Magistrate, Karkardooma, Delhi ('learned MM') in CC No. 52659/2016 titled "Anil Kumar vs. Satya Pal Dhawan". Further, vide order on sentence dated 13.09.2018, the petitioner was sentenced to undergo imprisonment for three months and fine of Rs. 2,60,000/-out of which, Rs. 2,40,000/-is payable to the complainant as compensation and remaining amount of Rs. 20,000/-is to be deposited with State by the convict and in default of payment of same, convict will suffer further simple imprisonment of two months.
3. Briefly stated, the facts of the present case as per the case of complainant are that the complainant used to have friendly relation with the accused/petitioner and the accused had requested to arrange a sum of Rs. 1,50,000/-as friendly loan since he was in dire need of money. Accordingly, the complainant had advanced a friendly loan of the said amount in cash to the accused. It was also alleged that the accused in order to discharge his liability towards the complainant had issued cheque bearing no. 894375 dated 10.10.2011 for an amount of Rs. 1,50,000/-. When the complainant had presented the said cheque, it had been returned dishonoured with remark 'funds insufficient' vide cheque return memo dated 13.01.2012. The complainant had then conveyed the same to the petitioner vide legal demand notice dated 10.02.2012. The accused had failed to pay the demanded amount within stipulated period despite service of statutory demand notice. Thereafter, the complainant had filed the present complaint case before the learned MM.
4. During the course of trial, complainant had got himself examined as CW1, and the evidence of complainant taken on affidavit at pre-summoning stage was tendered during the trial. He had also proved the other documents such as his affidavit, the cheques in question and their return memos, the legal notice issued to the petitioner as well as the postal receipts of the same.
5. Statement of accused/petitioner was recorded under Section 313 of Cr.P.C. whereby he had admitted the signing and filling the entire contents of the cheque in question and had also stated that he had taken an amount of Rs. 1,50,000/-from the complainant. He had further stated that since the complainant had to get an ATM installed at his shop, accused had returned the said amount in cash after selling his flat in Mandawali. It was also stated that the complainant had not returned his cheque even after the liability was discharged.
6. After hearing the final arguments and appreciating the evidence on record, the petitioner herein was convicted under Section 138 of NI Act by virtue of judgment dated 09.03.2018. The operative part of the said judgment reads as under:
"...7. Coming to the appreciation of testimony of witnesses in the case, it is clear that accused has taken Rs. 1.5 lacs from the complainant and he had given cheque in question after filling the entire cont........