R. Basant, J.

Is the battle lost for want of the horse shoe nail? Does the innocuous defect made by the counsel while, describing the name of the petitioner in the notice of demand result in the loss of this legal battle for him? These are the questions that fall for consideration in this Revision Petition, directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under S.138 of the N.1 Act.

2. The cheque is for an amount of Rs.2.25 lakhs. It bears the date 14.11.1996. The petitioner now faces a sentence of S.I for a period of three months. There is a further direction to pay an amount of Rs.2.5 lakhs as compensation and in default to undergo S.I for a period of three months.

3. Signature in the cheque is admitted. Notice of demand, which was duly received and acknowledged, succeeded only in evoking Ext.P6 reply. No payment was made. The complainant in these circumstances came to court after observing the statutory time table scrupulously. He examined himself as PW1 and the manager of the drawee bank as PW2. Exts.P1 to P7 and Ext.X1 were marked by the complainant. The accused did not tender any oral evidence. Ext.D1, an agreement was marked on the side of the accused when PW1 was in the witness stand.

4. The accused appears to have taken two conflicting defences on merits. She contended that a blank signed cheque was handed over by her to her husband and by her husband to the complainant. The said blank cheque was being misutilised by The complainant to stake a false claim, it was contended. Alternatively an incongruent version was also sought to be advanced that the complainant was the driver of the petitioner and her husband and that he had stolen the signed blank cheque from the possession of the petitioner and had misutilised the same.

5. In the notice of demand-Ext.P3 issued by the counsel for the complainant, a mistake appears to have crept in. Instead of describing the complainant as K.N. Manikyan, which he really is, the name of the complainant was shown as K.N. Murukesan by the counsel. In all other particulars, the details of the payee/complainant tallied with the details of the person on whose behalf Ext.P3 notice was sent. The accused attempted to take advantage of this mistaken description of the name of the complainant in Ext.P3.

6. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all elements of the offence punishable under S.138 of the N.I. Act and that the accused has not succeeded in proving or probabilising his version. The courts further held that the innocuous error in the description of the name of the complainant cannot deliver any advantage to the petitioner in as much as there was and could be no doubt or confusion about the identity of the person on whose behalf the counsel had issued the notice of demand-Ext.P3. Accordingly they proceeded to pass the impugned concurrent judgments.

7. Counsel have, advanced their arguments before me. The learned counsel for the petitioner reiterates the contentions that were raised before the courts below.

8. Less said about the contention of misutilisation of the cheque by the complainant, the better. We have primarily the evidence of PW1 to explain the circumstances under which PW1 came into possession of Ext.P1 cheque admittedly drawn on a cheque leaf issued to the petitioner by her bank to operate her account and which admittedly bears the signature of the petitioner. The crucial question is whether the oral evidence of PW1 can be accepted. His evidence is supported eminently by his ability to produce Ext.P1 cheque. No contra evidence has been adduced. But the accused can always contend that the evidence adduced by the complainant does not prove the drawal - ie. the execution and handing over, of the cheque. The drawal has to be proved by the complainant and in the proof thereof, the presumption under S.139 of the N.I Act can be of no help to the complainant. Only when the d