V. Jagannathan, J:

1. This Criminal Revision Petition is by the accused, who has been convicted by the Trial Court for the offence under Section 138 of the Negotiable Instruments Act and the said judgment and the consequent sentence of fine of Rs.2,00,000/- imposed being confirmed by the lower appellate Court by dismissing the petitioner’s appeal.

2. The facts of the case in short are that, the respondent filed a complaint alleging an offence under Section 138 of the N.I.Act on the footing that the petitioner herein had borrowed a loan of Rs.2,00,000/- from the complainant and towards the discharge of the said loan amount, the petitioner had issued a cheque for Rs.2,00,000/- and the said cheque dated 22.8.2005, on presentation, was returned with the endorsement insufficient funds. After issuing notice to the petitioner and receiving no response, the complainant approached the Trial Court by way of a private complainant under Section 200 of the Cr.P.C.

3. Before the Trial Court, evidence was let in by the complainant by examining himself as P.W.1 and two more witnesses and producing four documents. No evidence was placed by the accused in his defence. The Trial Court, after appreciating the evidence on record, held that the complainant had established the necessary ingredients of Section 138 of the N.I.Act and as the cheque was signed by the accused, the Trial Court accepted the complainant’s case and the petitioner was convicted and sentenced as aforesaid. The lower appellate Court agreed with the Trial Court.

4. Learned Counsel Shri N.Chandrashekharayya for the petitioner, assailing the concurrent findings of the Courts below, put forward four main grounds. The first one is that, there is no proof of the complainant having lent Rs.2,00,000/- to the petitioner because, no receipt or any document was obtained by the complainant the accused. Secondly it is argued that the complainant had no capacity to advance Rs.2,00,000/-because, the complainant was a tailor by occupation. It is also argued in the same context that the complainant does not even know the name of the person who had lent Rs.50,000/- to the complainant.

5. It is then contended that no notice was served on the accused because, the evidence placed is that, the intimation was left with the accused by the postman but, at the same time, Ex.P-4 also reveals that the endorsement on the postal cover was that the petitioner was out of station. Therefore, when the petitioner was not in station, the question of the postman leaving the intimation with the petitioner to collect the postal cover within seven days cannot be accepted.

6. The fourth ground put forward is that, the complaint itself is a premature one inasmuch as the complaint was filed on 16.9.2005 and if the notice was served on 1.9.2006 as contended by the complainant, then, a clear fifteen days ought to have been given before filing the complaint. For this reason also, the complaint, therefore, will have to be termed as premature.

7. In the light of the aforesaid contentions put forward and also relying on this Court’s reported in ILR 2008 Karnataka 4629, it is argued that the Courts below committed an error in convicting the petitioner when there was absolutely no evidence to show the capacity of the compliant to advance the loan amount of Rs.2,00,000/-. One other ground put forward is that, the complainant, in respect of the very same transaction of lending Rs.2,00,000/- loan to the petitioner, had also filed a suit for recovery of money and the said suit, O.S.No.213/2010, was also dismissed by the Trial Court by holding that the complainant had failed to establish that the had advanced Rs.2,00,000/- to the petitioner herein. For all these reasons, the learned Counsel sought for the petition being allowed.

8. On the other hand, learned Counsel Shri B.V.Somapur for the respondent supported the view taken by the Courts below and argued that the notice was served on the complainant or rather deemed