This revision petition is preferred by the accused

aggrieved by the judgment and order of conviction and

sentence passed against him by the Court of the Civil

Judge and JMFC, Hosanagara in C.C.No.25/2007 for the

offence punishable under Section 138 of the Negotiable

Instruments Act (for short 'the N.I.Act') which is

confirmed

by

the

Court

of

the

Fast

Track-III,

Shivamogga, in Crl.Appeal No.144/2011.

2.

I have heard the learned counsel for petitioner and

perused the material on record. Learned counsel for the

respondent is absent.

3.

The brief facts are that:

The complainant and the accused are known to

each other. On 28.09.2006, the accused borrowed a

hand loan of Rs.41,000/- from the complainant for his

financial necessity with a promise to return the said

amount within one month. Towards the repayment of

the said loan, the accused issued a Cheque dated

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30.11.2006 drawn on Canara Bank, Hosanagara Branch

bearing No.99906. When the said cheque was presented

for encashment, the same came to be dishonoured for

the reason 'funds sufficient' in the account of the

accused. Thereafter, the complainant got issued a legal

notice on 05.12.2006 calling upon the accused to repay

the amount mentioned in the Cheque, which was served

on the accused on 08.12.2006. In spite of service of

notice, the accused neither paid the cheque amount nor

replied to the notice.

4.

Before the trial court, the complainant to prove his

case has got examined himself as PW.1 and also got

examined the employee of the Bank as PW.2. He got

marked six documents as Exs.P1 to P6. The accused got

himself examined as DW.1 and got marked Ex.D1.

5.

The accused has taken a defence that the

complainant and himself are involved in a business

transaction and in the said business, the complainant

himself was liable to pay some amount to the son of the

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accused and there was a quarrel between his son and the

complainant. It is stated that the complainant committed

theft of Ex.P1 and misused the same and filed a false

case against the accused.

6.

The trial court after appreciating the oral and

documentary evidence on record has come to the

conclusion that if at all the complainant and the son of

the accused were doing any transaction, then definitely

the accused would have examined his son. Hence, the

trial court was of the view that the suggestion in the

cross examination is not sufficient to come to the

conclusion that the complainant was having business

transaction with the son of the accused. Further, with

regard to theft of cheque belonging to the accused, the

trial court has observed that the accused being a prudent

man, would have given a complaint before the police and

he would have definitely instructed the Bank for stop

payment of his Cheque. Admittedly, the accused has

neither caused any complaint regarding commission of

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theft nor he has informed the Bank for stop payment of

Cheque. The suggestion put to the complainant by the

defence that the contents of Ex.P1 has been written by

him has been denied. There is no suggestion put to the

complainant that the signature in Ex.P1 - Cheque is not

that of the accused. The trial court has taken note of the

fact that for the first time in the cross examination, DW.1

deposed that, writings as well as the signature on Ex.P1

- Cheque was not of the accused.

7.

Admittedly,

the

legal

notice

issued

by

the

complainant has been served on the accused. He has

not replied to the same. If there was no such business

transaction between the complainant and the accused

and if the complainant had stolen the cheque in question

and presented the same to the Bank, certainly the

accused would have taken proper legal action against the

complainant for the theft committed by him. It is also

relevant to see that the cheque was returned for

insufficiency of funds. If at all there is any difference in

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the signature on Ex.P1 and specimen signature, the Bank

would have definitely given an endorsement in that

regard.

8.

The