This revision petition is filed by the revision

petitioner / accused under Section 397 and 401 of

Code of Criminal Procedure, 1973 (hereinafter referred

to as 'Cr.P.C' for short) challenging the judgment of

conviction

and

order

of

sentence

passed

in

C.C.No.33409/2010 on the file of XXI Additional Chief

Metropolitan Magistrate, Bangalore dated 19.07.2014

and confirmed by LVIII Additional City Civil and

Sessions Judge Bangalore in Crl.A.No.858/2014 dated

30.07.2015.

2.

For the sake of convenience, the parties

herein are referred with original ranks occupied by

them before the trial Court.

3.

The brief factual matrix leading to the case

are as under:

3

That the complainant and accused are known to

the each other for past 30 years and they are distant

relatives. That accused engaged in the business of

textiles in readymade garments and he approached the

complainant for temporary financial assistance due to

global

recession

for

running

his

business

and

complainant has advanced loan of Rs.5 Lakhs payable

on demand within two months. On persistent demand,

the accused has issued a cheque bearing No.034976

dated 17.05.2010 for Rs.5 Lakhs and when the said

cheque

was

presented,

it

was

returned

with

endorsement as ‘funds insufficient’. The complainant

thereafter, issued a legal notice, but accused did not

pay the amount and hence, this complaint was filed.

4.

The learned Magistrate has taken cognizance

of the offence and issued process against the accused.

The accused has appeared through his counsel and

was enlarged on bail. The plea under Section 138 of

Negotiable Instruments Act, 1881 (hereinafter referred

4

to as 'the N.I.Act' for short) is recorded and accused

denied the same.

5.

The complainant was examined as PW1. He

has also placed reliance on 4 documents marked at

Ex.P1 to Ex.P4. After conclusion of the evidence of the

complainant, the statement of accused under Section

313 of Cr.P.C. is recorded to enable him to explain the

incriminating evidence appearing against him. His case

was of total denial. Thereafter, accused himself got

examined as DW1 and he denied the transaction.

However, he did not produce any documents in

support of his defence.

6.

Having heard the arguments and after

appreciating the oral and documentary evidence, the

learned Magistrate has convicted the accused by

imposing a fine of Rs.5,20,000/- with default sentence.

This order is being challenged by the accused before

LVIII Additional

City

Civil and

Sessions

Judge

5

Bangalore in Crl.A.No.856/2014. The 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. Against these concurrent

findings, the revision petitioner / accused is before this

court by way of this revision.

7.

Heard the arguments advanced by the

learned counsel for the revision petitioner/accused and

learned counsel for the respondent / complainant.

Perused the records.

8.

The

learned

counsel

for

the

revision

petitioner would assert that no specific date of

advancement of loan is disclosed. It is further

asserted that the cheque was issued in the name of the

firm and the firm alone was made as a party, but

partners were not made as party. He would also

contend that there is no transaction between the firm

6

and the complainant and complainant’s financial

capacity to advance loan is not established. He would

also assert that notice was not issued to the firm, but

notice was issued to the partner and there is no

reference in the notice that it was issued to the partner

for firm. It is also contended that there is no legally

enforceable debt between the firm and accused and

since, the financial status is not proved there is no

legally enforceable debt. Hence, he would contend that

both the courts below have committed error in

convicting the accused and sought for allowing the

revision by acquitting him.

9.

Per contra, the learned counsel for the

respondent