This

revision

petition

is

filed

by

the

revision

petitioner/accused under Section 397 read with Section 401 of

Cr.P.C. challenging the judgment of conviction and order of

sentence passed by the I Additional Civil Judge and JMFC,

Malavalli in C.C.No.374/2007 vide judgment dated 28.06.2013

which is confirmed by the II Additional Sessions Judge,

Mandya in Crl.A.No.108/2013 vide judgment dated 12.08.2015.

2.

For the sake of convenience partiers herein are

referred to with their original rank before the Trial Court.

3.

The brief factual matrix leading to the case are that

the accused has borrowed a sum of Rs.2,00,000/- from the

complainant on 25.11.2006 for his legal necessity agreeing to

repay the same within 3 months and in order to discharge the

said loan liability, he has issued a post dated cheque in favour

of the complainant. When the said cheque came to be

presented

for

encashment,

it

was

returned

with

an

endorsement as 'funds insufficient'. A legal notice was issued

- 3 -

by the complainant to the accused, and though served, he did

not respond. Hence, the complainant has filed a complaint

under Section 200 of Cr.P.C, alleging that accused has

committed the offence under Section 138 of Negotiable

Instruments Act.

4.

The learned Magistrate, after recording the sworn

statement of complainant, has taken cognizance of the offence

and issued process against the accused. Accused has appeared

and he denied the charges when the plea was read over and

explained to him. The complainant got examined himself as

P.W.1 and placed reliance on 10 documents. After conclusion

of the evidence of the complainant, the statement of accused

under Section 313 of Cr.P.C, was recorded to enable him to

explain the incriminating evidence appearing against him and

the case of accused is total denial. He got himself examined as

D.W.1, but did not choose to produce any documentary

evidence.

5.

After hearing the arguments and perusal of the oral

as well as documentary evidence, initially, the Trial Court has

convicted the accused for the offence punishable under Section

- 4 -

138 of N.I. Act. Against the said judgment of conviction and

order of sentence, the accused has approached the learned

Sessions Judge and the matter was remanded to the Trial

Court.

6.

After

remand,

again

the

learned

Magistrate

convicted the accused for the offence punishable under Section

138 of N.I. Act by imposing sentence of imprisonment for a

period of 6 months with fine of Rs.3,00,000/-.

7.

Being aggrieved by the judgment of conviction and

order of sentence, the accused has approached the learned II

Additional Sessions Judge, Mandya in Cr.A.No.108/2013.

Learned Sessions judge, after re-appreciating the oral and

documentary evidence, dismissed the appeal by confirming the

judgment of conviction and order of sentence passed by the

learned Magistrate.

8.

Being aggrieved by these concurrent findings, the

accused is before this Court by way of this revision.

9.

Heard the arguments advanced by the learned

counsel for the revision petitioner and learned counsel

appearing for the respondent. Perused the records.

- 5 -

10.

Learned counsel for the revision petitioner would

contend that the complainant had no capacity of advancing the

loan of Rs.2,00,000/- and the whatever documents he has

produced pertaining to financial status were subsequent to

remand. He would further assert that it was a self-cheque and

hence, though cheque was misplaced, he did not take any steps

as there is no possibility of manipulation. He would

alternatively, contend that in case of confirmation of the

conviction, sentence of imprisonment may be set aside by

restricting the sentence to fine only.

11.

Per

contra,

learned

counsel

for

the

respondent/complainant

would

support

the

judgment

of

conviction and order of sentence passed by the Trial Court and

affirmed by the Appellate Court. He would contend that the

signature of Ex.P.1(a) is admitted and though accused dispute

his signature r