Honble GOYAL, J.–Heard learned counsel for the parties and learned Public Prosecutor.

(2). The complainant-respondent No. 2 filed a complaint under Section 138. The Negotiable Instrument Act, 1881 (in short the ``Act 1881) against the accused petitioner in the court of learned Judicial Magistrate No. 1, Jaipur City, Jaipur on 21.4.1992 with the averments that the complainant and the accused constituted a partnership firm under the name of ``Nishat Carpets with effect from 11.5.1989. the firm was engaged in manufacturing of carpets. The complainant invested a sum of Rs. 50,000/- in the month of May, 1989 and this amount was paid to the accused. The business of the firm was running properly, but in October, 1991 the complainant separated himself from this firm and thus the firm stood dissolved. At that time, accounts were settled and a sum of Rs. 64,904/- was found due to be paid by the accused to the complainant. The dissolution deed was executed. Towards the aforesaid liability, a cheque of Rs. 40,000/- was issued by the accused in favour of the complainant on 5.10.1991. This cheque was drawn form the Urban Co-operative Bank Ltd., Adarsh Nagar, Jaipur and was payable to the complainant. It was further averred in the complaint that the accused had requested him to encash the cheque after February, 1992. The complainant presented the cheque through State Bank of Bikaner and jaipur, Gopi Nath Marg, Jaipur for clearance on 12.3.1992. The cheque was dishonored with the remark ``refer to drawer. The complaint served a written notice dated 24.3.1992 by the registered post. The accused received this notice on 26.3.1992, but no payment was made.

(3). The learned Magistrate recorded the statement of the complainant under Sec. 200 Cr.P.C. and took cognizance under Sec. 138 of the Act, 1881.

(4). The substance of the offence was read over to the accused, who pleaded not guilty. The complainant apart form himself examined PW 2 Kanti Bhushan Sharma and PW 3 Surendra Singh. The accused was examined under Sec. 313 Cr.P.C.. He denied the evidence and stated that the complainant failed to deposit a sum of Rs. 42726/-, belonging to the firm. The accused got himself examined as DW 1. The learned Magistrate No. 7, Jaipur city, jaipur vide judgment dated 15.1.1997 convicted and sentenced the accused under Section 138 of the Act, 1881 for the said offence to undergo nine months simple imprisonment and a fine of Rs. 10,000/-, in default to further undergo three months imprisonment.

(5). In criminal appeal No. 44/98 filed by the accused petitioner, the learned Additional Sessions Judge NO. 1, Jaipur City, Jaipur vide judgment dated 31.1.99 maintained the conviction but instead of sentencing the accused with imprisonment, imposed a fine of Rs. 80,000/-, in default to undergo nine months simple imprisonment. It was also directed that out of this amount of Rs. 80,000/-, a sum of Rs. 70,000/- shall be paid to the complainant. hence this criminal revision by the accused petitioner.

(6). I have heard learned counsel for the parties. These facts are not in dispute that both accused and the complainant constituted a partnership firm was registered with the Registrar of Firms and the complainant invested a sum of Rs. 50,000/- in this partnership business. It is also not disputed that the accused issued this cheque of Rs. 40,000/- in favour of the complainant and this cheque was dishonored on account of insufficient funds in the bank account which was in the name of this partnership firm. It is also not disputed that the complainant served a notice upon the accused petitioner but he did not make any payment to the complainant.

(7). Before coming to the rival contentions, it would be proper to refer the provisions of Section 138, 139 and 141 of the Act, 1881.

138. Dishonour of cheque for insufficiency, etc., of funds in the accounts. ``Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person f

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