This revision is against the order of dismissal of the criminal appeal filed by the petitioners in No.65/03 by the IX Add!. Sessions Judge, Bangalore City by order dated 28-6-2003.

2. A complaint was filed by the respondent before the XV Addl. CMM, Bangalore under S.138 of the Negotiable Instruments Act which was registered in CC 20134/1999. These petitioners are arrayed as accused 2 and 7. Accused 1 is the company by name Saroj Mining Ltd., Bangalore. The 1st petitioner is the Chairman and the 2nd petitioner is the Director and it is alleged that accused have borrowed loan from the complainant in a sum of Rs.18.5 lakhs. There was also a resolution passed by the accused to clear the amount due to the complainant. The 3rd accused being the Managing Director of the accused-company, on the basis of the resolution, had issued a cheque for Rs.20 lakhs in favour of the complainant. On presentation, the said cheque came to be dishonoured for 'insufficient funds' After causing a legal notice demanding to pay the cheque amount, a complaint was filed for non-compliance. Thereafter, learned Magistrate who held the enquiry, convicted accused 1, 2 & 7 for the offence under S.138 of the Negotiable Instruments Act and sentenced them to pay fine of Rs.34,65,000/- and in default, it was ordered that accused 2 & 7 to undergo simple imprisonment for a period of three months. Out of the fine amount, an amount of Rs.34,40,000/ - was ordered to be paid as compensation to the complainant.

3. Being aggrieved by the said order, petitioners have preferred appeal before the IX Addl. Sessions Judge. Bangalore who, in turn, while confirming the order of the trial Court, dismissed the appeal. Hence, this revision by the accused petitioners.

4. Heard the counsel for the respective parties.

5. It is the argument of the petitioners' counsel that both the Courts below have committed an error in convicting the accused although there is no legal evidence and no legally enforceable debt is to be discharged. Further, it is submitted that these petitioners though were arrayed as Chairman and one of the Directors of the accused 1/company, they were not responsible for the day-to-day affairs and conduct of the business of the company. Even according to the complainant, the amount was paid to the 1st petitioner but, the complaint has been filed against the Company which is contrary to the facts. The complainant failed to produce the statement of accounts to prove the amount due and also to prove that the complainant had sufficient funds and capacity to pay the said amount. The name of the complainant is not found in the creditors list of the company as such, the 1st accused or the petitioners are not responsible despite which both the Courts below have held the accused guilty and the said order requires interference.

6. It is argued further that no corroborating evidence is available to show that Rs.18 lakhs was paid to the 2nd accused and since the two directors were available at Bangalore, complainant filed a complaint against them and it was for the complainant to prove the payment of the legally enforceable debt. It is argued that if the circumstances are suspicious, the presumption under 5s.20 and 118 of the Negotiable Instruments Act gets rebutted. Further it is submitted that as per 5.5 of the Money Lenders Act, unless there is a license, it cannot become a legally recoverable debt as the complainant is a money lender and that a time barred debt cannot be recovered as the amount is advanced during 1994. The petitioner has not signed any of the documents though he was the Chairman and accordingly submitted that the petitioner is not responsible for any of the transaction and, referring to some of the admissions made by the complainant regarding collecting of interest on the amount that would be advanced, it was contended that it is a clear case of money lending and in the absence of any such license being obtained by the complainant to lend money, the same