The arraignment of a company as an accused is a condition precedent for its prosecution, and the presumption of debt or legally enforceable liability can be rebutted by the defense.

JUDGMENT

H.P. Sandesh, J. - This revision petition is filed under Section 397 read with Section 401 of Cr.P.C., praying this Court to set aside the judgment and order dated 20.08.2013 passed in Crl.a.No.125/2011 on the file of II additional District and Sessions Judge, Davanagere and also the judgment and order of conviction and sentence dated 24.08.2011 passed in C.C.No.769/2009 by the III additional Senior Civil Judge & JMFC., Davanagere, and acquit the petitioner for an offence punishable under Section 138 of the N.I.act.

2. The factual matrix of the case of the complainant before the Trial Court is that accused Nos.1 to 4 being the partners of M/s. Itagi Medicals, Davanagere, due to the said acquaintance with the complainant in the month of January 2004, availed hand loan of Rs.1,00,000/- for their business purpose agreeing to repay the same within 2 to 3 months. On demand for re-payment, the accused has issued two post dated cheques. When the same were presented for encashment, they were returned with an endorsement as 'Insufficient Funds'. Hence, a legal notice was issued. Despite receipt of notice not paid the amount. Only accused No.4 gave an untenable reply and not complied with the demand. Hence, a complaint was filed and cognizance was taken. accused No.2 did not turn up. Hence, a split up case was registered against him. The complainant examined P.a. holder as P.W.1 and got marked the documents as Exs.P1 to P20(a and b). accused No.1 examined himself as D.W.1 and got marked the documents viz., Exs.D1 to D3. The learned Magistrate acquitted accused Nos.3 and 4 for the said offences and convicted accused No.1 to pay a sum of Rs.1,50,000/-. aggrieved by the judgment of conviction, accused No.1 filed Crl.a.No.53/2006, wherein, the judgment of conviction was set aside and the matter was remanded to the Trial Court with a direction to give an opportunity to the complainant to depose in the case as witness to prove his complaint-Ex.P18 and to adduce further evidence if any by both the sides and to dispose of the matter on merits. The said order again was challenged by the petitioner in Criminal Revision petition No.86/2007 before this Court and the same was also dismissed. In terms of the order passed by the appellate Court, the complainant was further examined as P.W.2 and got marked the documents as Exs.P1 to P20(a)(b). 313 statement was recorded. again the accused, the present petitioner stepped into the witness box and further examined. The Trial Court having considered the material on record afresh on merits, convicted the present petitioner. Being aggrieved by the judgment of conviction and order on sentence, an appeal is filed in Crl.a.No.125/2011 before the appellate Court. The appellate Court on re-appreciation of the material available on record dismissed the appeal. Hence, the present revision petition is filed before this Court.

3. The learned counsel appearing for the petitioner would vehemently contend that the very presumption is rebutted before the Trial Court by examining the petitioner as D.W.1 and also got marked the documents. In spite of rebuttal evidence was led, both the Courts have committed an error. The other contention is that under Section 141 of the N.I.act, Firm ought to have been made as parties to the proceedings and the same has not been done. The learned counsel also would submit that for having paid the amount, the same is not shown in the IT returns. The complainant has not relied upon any documents except the cheque amount to show that the transaction was taken place in the year 2004. The learned counsel would vehemently contend that the cheque was issued in the year 1993 and there was no any transaction in the year 2004 and the said cheque has been mis-used.

4. In support of his contentions, the learned counsel appearing for the revision petitioner relied upon the judgment of the apex Court regarding presumption is rebutted in the case of Vijay v. Laxman and another reported in 2013(3) Cr