1. This Revision Petition is filed challenging the judgment of conviction and sentence recorded by the XVIII Addl. CMM, Bangalore in C.C.No.7509/2009, confirmed by the LXII Addl. City Civil and Sessions Judge (CCH-63), Bengaluru, in a proceeding under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short).

2. Briefly stated, the respondent herein (hereinafter referred to as 'complainant') filed a complaint under Section 200 of Cr.P.C. against the petitioner (hereinafter referred to as 'accused') alleging that, the complainant is a distributor for M/s. Schneider Electric India (P) Limited, New Delhi. The accused representing his Company M/s.Balaji Power Gears availed the services of the complainant by placing orders for supply of certain goods. Invoice was raised and the complainant supplied the required materials, which was ordered. The total value of the goods as per invoice is Rs.32,84,019.44 paise. For delayed payment credit limit was 45 days from the date of receiving the supply of the materials. But the accused did not pay the amount within the above period; after persistent demand, the accused issued two cheques in the month of August 2008 and one cheque in the month of September 2008 towards part payment of the total liability. The cheques were presented for encashment before complainant's Banker - Standard Chartered Bank, IPC Unity Building Branch. On 28.9.2008, vide separate Bank endorsement, the cheques were returned as "not arranged for". Demand notice was issued by the complainant on 1.10.2008 and it was served on the accused and his Company. The accused was called upon to pay a sum of Rs.28,53,689/-. The accused gave reply to the notice refuting his liability and rejected the payment of demanded money, thus, committed offence under Section 138 of the Act.

3. On presentation of the complaint, cognizance was taken, accused was procured; he pleaded not guilty. One witness was examined for the complainant and 15 documents were marked. Rebuttal evidence was adduced for the accused and 9 documents were marked.

4. The Trial Court after giving its audience to both found the accused guilty of the offence under Section 138 of the Act and sentenced him to pay a fine of Rs.40,73,689/- with default clause. Appeal preferred thereon went in vain.

5. Sri. Vijayakumar G. Bagoji, learned Counsel appearing for the revision petitioner submits, in fact, the accused was acquitted by the Trial Court on the previous occasion vide judgment dated 24.11.2011. The complainant had approached this Court in Criminal Appeal No.1292/2011. This Court has allowed the said appeal, set aside the judgment of acquittal on the ground that the evidence of the complainant was received by way of affidavit. However, this Court had not expressed any opinion on the merits of the case. Thus, the matter was remitted back by setting aside the judgment of acquittal.

Learned Counsel continues, the courts below have not considered the judgment of this Court from proper perspective. The defence raised by the accused was not at all considered by both the courts below. It was a business transaction between the complainant and the accused and the very complaint was not maintainable. The accused raised his preliminary objection about the maintainability of the complaint, but the Trial Court rejected the same with the observation that the burden of proof lies upon the accused to show that the cheque in question was not issued towards legally enforceable debt. The complainant being a Proprietorship firm, either the firm or its Proprietor had not executed any Power of Attorney in favour of one Mahesh, who filed the complaint and led the evidence on behalf of the firm. The firm is not made a party to the above proceedings and there is no averment in the complaint how the accused is responsible for the offence. The cheques are signed by the accused as Proprietor of the firm. Hence, firm was a necessary party. The cheques were issued as advance payment