M. D. SHAH, J. This revision is directed against the judgment and order dated 23rd July, 2007 passed by the learned Sessions Judge, Gandhinagar, in Criminal Appeal No. 20 of 2007 confirming the judgment and order of conviction and sentence dated 9th March, 2007 recorded by the learned 6th Addl. Senior Civil Judge & J.M.F.C., Gandhinagar, in Criminal Case No. 6625 of 2000 sentencing the applicant-accused to suffer one year S.I. and to pay fine of Rs.10,000/-, in default, to suffer further S.I. for 45 days for the offence under Sec. 138 of Negotiable Instruments Act.

2. The short facts are that the complainant, a proprietary firm, doing business in the name and style of Harjas Coatings and Pol had supplied goods to the accused. The complainant received only a part of the amount and for the remaining amount, he received ICICI Bank cheque of Kanpur Bninch, Kanpur (U.P.) dated 25-3-2005 drawn in his name for Rs. 10,00,000/- from the accused. On presentation of the said cheque with ICICI Bank, Gandhinagar Branch, on 9-9-2005, it was returned with an endorsement "funds insufficient". Hence, a statutory notice was issued to the accused on 10-9-2005 which was duly served upon him. Since, he did not pay the due amount, a complaint was filed by the complainant before the learned Chief Judicial Magistrate, Gandhinagar, for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1981. The said complaint was registered as Criminal Case No. 6625 of 2000. The learned Magistrate on recording the verification of the complainant proceeded with the trial. On completion of evidence of complainant, further statement of the accused under Sec. 313 of the Code of Criminal Procedure was recorded. Thereafter, the learned 6th Addl. Senior Civil Judge & J.M.F.C., Gandhinagar, vide order dated 9th March, 2007 convicted the applicant-accused as aforesaid.

3. Heard Mr. Bharat lani, learned Advocate for the applicant-accused, learned A.P.P., Mr. Kartik V. Pandya for the respondent No. I and learned Advocate, Mr. C. B. Dastoor for the respondent No.2-original complainant.

4. It is submitted by learned Advocate, Mr. Bharat lani, for the applicant that the impugned judgment and order passed by the Court below is against the law and evidence on record. It is further submitted that the trial Court has not considered the fact that proper procedures prescribed under Banking rules have not been followed by the complainant. There was no stamp of the Bank either in front side of the cheque Exh. 32 or on the back of it. Apart from that, the complainant has also not followed provisions of Sec. 146 of the Negotiable Instruments Act. According to him, the cheque in question was not at all deposited by the complainant as counter-foil of the pay-in-slip showing deposit of amount with the Bank has not been produced on record and simply the acknowledgment slip of Postal Department is produced. Apart from that, the concerned Bank Officer who dealt with the cheque has not been examined by the complainant to verify the genuineness of fact and an officer non-conversant with the case has been examined. The trial Court has also not considered the documents at Exhs. 41 to 48. Moreover, there was an apparent breach of Sec. 72 of the Negotiable Instruments Act as the cheque was never forwarded to Kanpur Branch after it was presented with Gandhinagar Branch. The trial Court has also not considered the fact that complaint was lodged for theft of cheques before the police which has come on record. However, the trial Court simply by recording the verification of the complainant and plea of the accused has passed the impugned order convicting the applicant-accused. Since, the said judgment and order is illegal and untenable, the applicant-accused is entitled to be acquitted. He has relied upon the following reported decisions :

(1) 1999 (3) Crimes 252 in the case of Arunbhai Nilkanthrai Nanavati v. Jayaben Prahladbhai Through Her Power of Attorney & Anr.

(2) 2001 (1) Cri