The identification of the proprietor as the accused and the legal enforceability of the debt under the N.I.Act were central to the judgment.

1. This revision application was heard and dismissed for the reasons to be recorded. Accordingly reasons are being recorded. Introduction :

2. This criminal revision application filed under section 397 read with section 401 of Code of Criminal Procedure, 1973 (Cr.P.C.), is directed against the judgment and order dated 11th March, 2002 passed by the learned Sessions Judge, Pune in Criminal Appeal No.79/2001 confirming the judgment and order dated 21st May, 2001 passed by the Judicial Magistrate, First Class, Pune in Criminal Case No.439/1997, who was pleased to convict the applicant- accused under section 138 of the Negotiable Instruments Act, 1881 ("N.I.Act" for short) for the reasons recorded therein. Factual Matrix :

3. The factual matrix of the case, in brief, is that the applicant/ accused is one Mr.Shirish Suresh Welling, proprietor of M/s.Natesha Securities. Respondent No.1- Vinayak Waman Mokashi is one of the nearest relatives of Mr.Shirish Welling dealing in shares and securities.

4. The case of the complainant was that the accused Shirish Welling was in financial difficulties. He requested to the complainant, who happened to be one of his close relatives, for hand loan. The accused being one of the relatives of the complainant paid him Rs.1,00,000/- by demand draft No.378111, dated 22nd January, 1996 drawn on Janata Sahakari Bank payable to M/s.Natesha Securities.

5. The aforesaid demand draft was encashed by the accused through his bank account maintained with HDFC Bank. According to the complainant, in spite of repeated demands, he did not repay the said amount to the complainant. However, after persistent demands, accused issued a cheque of Rs.1,00,000/- in favour of the complainant bearing No.012799 dated 11th November, 1996 drawn on H.D.F.C. Bank, Khar Branch Mumbai, which the applicant deposited for encashment in his bank account maintained with Cosmos Co-operative Bank Ltd. The cheque was dishonoured by the banker of the accused. The intimation of dishonour was received by the complainant through his banker on 29th April, 1997 vide bank’s letter dated 25th April, 1997.

6. The complainant after receipt of intimation about the dishonour, issued notice to the accused dated 9th May, 1997 under section 138 of the N.I.Act. The applicant received the said notice on 12th May, 1997 but did not make payment within stipulated period. The complainant filed a complaint on 9th June, 1997 under section 138 of the said Act.

7. The trial Court after issuing process passed an order below Exh.1 on 8th September, 2000 and tried the case by adopting the procedure meant for summons case. The trial Court explained the substance of accusation to the accused to which he pleaded not guilty and claimed to be tried.

8. The complainant examined himself. The accused cross-examined the complainant. The accused, thereafter, moved an application to recall the complainant for the purpose of further cross-examination to seek further clarification. Accordingly, he was allowed to cross-examine the complainant on second occasion. The complainant has also examined one of the employees of H.D.F.C. Bank, Mr.Prasad Kale. One Nitin Gokhale, employee of Janata Sahakari Bank Ltd along with one Subhash Nafad, an employee of Cosmos Bank were also examined by the complainant in support of his complaint.

9. The statements of accused came to be recorded under section 313 of Cr.P.C. on 24th November, 2000 at Exh.78. He admitted that the complainant had delivered one demand draft to the accused but, according to him, it was for the purposes of making investment in shares on his behalf. According to him, he could invest Rs.77,500/- in the shares and returned balance amount of Rs.22,500/- by demand draft drawn in favour of the wife of the complainant. He further went on to state that the subject cheque of Rs.1,00,000/- (one lakh only) was issued just for the satisfaction of