ORDER : P.Q. BARKATH ALI, J. 1. Revision petitioner is the accused in C.C.No.536/2001 on the file of the Judicial Magistrate of the First Class, Vaikom and the appellant in Crl.A.No.551/2005 on the file of the Sessions Court, Kottayam Division. 2. The revision petitioner was convicted under Section 138 of the Negotiable Instruments Act and he was sentenced to pay a compensation of Rs. 58,000/- to the complainant, in default to undergo simple imprisonment for two months by the trial court by judgment dated August 10, 2005, which was confirmed in appeal by the lower appellate court by judgment dated October 13, 2008. The accused has come up in revision challenging his conviction and sentence. 3. 2nd respondent/complainant is M/s. Mama Produts, Kappumthala Kara, represented by its Managing Director (PW1). The case of the 2nd respondent/complainant as testified by PW1 before the trial court and as detailed in the complaint, in brief, is this:- Complainant is a registered partnership firm engaged in the business of making and selling of ice cream products. The revision petitioner/accused is one of its customer. Accused is the proprietor of M/s.Evershine Marketing, Sasthamangalam, Thiruvananthapuram. Towards the value of the ice-cream purchased by the accused, Rs.58,000/- was due to the complainant. To discharge that liability, the accused issued the cheque Ext.P3 dated June 2, 2001, drawn on the Balaramapuram Branch of Bank of India, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of notice Ext.P6 dated August 14, 2001, the accused did not re-pay the amount. Therefore, the complainant filed the complaint before the trial court under Section 138 of the Negotiable Instruments Act. 4. On receipt of the complaint, the trial court recorded the sworn statement of PW1 and took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under Section 138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P15 were marked on the side of the complainant. The accused got himself examined as DW1 and produced Exts.D1 to D11. 5. The accused on appearance before the trial court, pleaded not guilty to the charge under Section 138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P15 were marked on the side of the complainant. The accused got himself examined as DW1 and produced Exts.D1 to D11. 5. On an appreciation of evidence, the trial court found the revision petitioner/accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him there under and sentenced him as aforesaid, which was confirmed in appeal by the lower appellate court. The accused has come up in revision challenging his conviction and sentence. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the 2nd respondent. 7. The following points arise for consideration :- (1) Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court can be sustained? (2) Whether the sentence imposed is excessive or unduly harsh? 8. PW1 the Managing Director of the complainant firm testified in terms of the complaint before the trial court. His evidence is supported by Exts.P1 to P15. 9. The specific case of the accused was that he had no connection with M/s. Evershine Marketing Company and that he had no transaction with the complainant company. Both the courts below rejected the above contention and found that as the cheque is signed by the accused, he is liable under Section 138 of the Negotiable Instruments Act. On going through the records, I feel that the complaint itself is not maintainable. No document is produced by the complainant to show that the accused is the proprietor of M/s. Evershine Marketing Company or accused has any transaction with the complainant firm. The cheque was issued with the seal of M/s.G.S. Food Products. PW1 has no case that the complainant had any transaction with M/s.G.S. Food Products. If the complainant firm had any transaction with the accused, as proprietor of M/s.G.S. Food Products, there would have been documents to prove the same. No document is produced by the complainant firm to prove the transaction between the complainant and the accused as the proprietor of M/s. G.S. Food Products. Ext.P6 was issued in the personal name of the accused and not as the proprietor of M/s. Evershine Marketing. No document is produced by the complainant firm to prove the transaction between the complainant and the accused as the proprietor of M/s. G.S. Food Products. Ext.P6 was issued in the personal name of the accused and not as the proprietor of M/s. Evershine Marketing. That being so, the said notice is not valid. No independent evidence was also adduced by the complainant to prove the transaction between the complainant and the accused. 10. Under these circumstances, I feel that the complaint filed by the complainant against the accused alleging him to the proprietor of M/s. Evershine Marketing is not maintainable. That being so, the conviction and sentence against the accused by the courts below have to be set aside and the accused has to be acquitted. 11. In the result, the revision petition is allowed. The conviction and sentence of the revision petitioner by the learned Magistrate, which were confirmed by the learned Sessions Judge are set aside. The accused is acquitted under Section 255(1) Cr.P.C. His bail bonds are cancelled.