Arali Nagaraj, J.

The petitioner herein who is accused in C.C.No.11091/2004 before the learned XVI ACMM, Bangalore (herein referred to as "Trial Court" for short) has challenged the legality and correctness of the judgment and order of conviction and sentence dated 3-5-2006 passed in the said case convicting him for the offence punishable under Section 138 of the Negotiable Instruments Act (herein after referred to as "N.I.Act" for short) and also the judgment dated 11-12-2007 passed in CrI.A.No.944/2006 by the learned XXXVI Addl.City Civil & Sessions Judge (CCH37), Bangalore (hereinafter referred to as "Appellate Court" for short) confirming the judgment and order of conviction and sentence passed by the Trial Court.

2. Though this case was listed on 9-9-2008 for admission, it was taken up for final disposal by consent of the learned counsel for both sides and their arguments on merits were heard. I have perused both the impugned judgments and also the entire material on record.

3. Theonly point that arises for my determination in this revision petition is:

"Whether the judgment and order of conviction and sentence passed by the trial Court and the judgment passed by the appellate Court confirming the said judgment and order of conviction and sentence deserve to be set aside as being unsustainable in law?

My finding to this point is in the ‘affirmative for the following:

Reasons

4. Stated in brief the case of the complainant (herein after the parties are referred to as per their rank in the Trial Court), as averred in his complaint under Section 200 Cr.P.C. before the Trial court, is as under:

(a) The accused took hand loan of Rs.45,000/- from the complainant agreeing to repay the same in 40 days. Towards the repayment of the said hand loan, he issued in favour of the complainant the cheque bearing No_973199 dated 19-4-2004. On being presented to the Bank on 21-4-2004 for encashment, the said cheque came to be bounced on the ground of insufficiency of funds. Thereafter the complainant got issued the statutory notice Dated 30-4-2004 demanding from the accused payment of the said amount. Despite the receipt of the said notice the accused did not choose to pay the said amount. Therefore, the complainant filed the said case against the accused.

5. In order to substantiate his case, the complainant got examined himself as P.W.1 and got marked

Exs.P.1 to P.7. In support of his defence, the accused got himself examined as D.W. 1 and two other witnesses namely his wife Sint. Prema as D. W.2 and one Bharath Kumar as D.W.3 and got marked Ex.D.1 Extract of his Bank Account. On appreciation of the evidence adduced by the respective parties, both oral and documentary, the Trial Court held the accused guilty of the said offence and passed the impugned Judgment and order of conviction and sentence, which came to be confirmed in Crl.A.No.944/ 2006 by the appellate Court. Therefore, the present revision.

6. Sri. Shankaranarayana Bhat, the learned Counsel for the petitioner-accused strongly contended that the Trial Court as well as the Appellate Court both committed serious error in disbelieving the defence of the accused, as stated by him at the earliest point of time in his reply notice Ex.P.7 and as deposed by him as D. W.1, that he did not avail any loan from the complainant but he was due to the complainant the said sum of Rs.45,000/- towards the construction of his house by the complainant and therefore during April 2003 itself he issued cheque bearing No.973199 by inadvertently putting on it the date 19-4-2004 instead of 19.4.2003, the complainant misused the same against the accused after encashing another cheque bearing No.973200 dated 19-4-2003 which the accused had issued in favour of the complainant as substitute for the said earlier cheque No.973199.

7. As against the above contention of the learned Counsel for the petitioner, Sri. K. Chandrasekhara Achar, learned Counsel for the respondent-complainant contended that s