IMPORTANT POINT
If there is no admission and there is no proof of execution of cheque, presumption under Section 139 of NI Act cannot be drawn and it is to be proved independently.

M. Sasidharan Nambiar, J.—Petitioner, the accused in CC No.1270 of 2002 on the file of Chief Judicial Magistrate, Ernakulam was convicted and sentenced for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’ for short). Petitioner challenged the conviction and sentence before Sessions Court, Ernakularn in Criminal appeal No.211 of 2005. The learned Additional Sessions Judge on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is allowed in the revision.

2. Learned counsel appearing for the revision petitioner and the first respondent were heard.

3. The argument of the learned counsel appearing for the revision petitioner is that both the courts below did not properly appreciate the evidence and wrongly convicted the petitioner. It was argued that presumption under Section 139 of the Act could be drawn only if it is admitted that petitioner has drawn the cheque or it is proved that the petitioner had executed the cheque in favour of the first respondent and when there is no admission and evidence to prove the execution, the conviction is unsustainable. The learned counsel argued that first respondent was not examined and on his behalf the Manager was examined as PW1 and the evidence of PW1 does not show that the cheque was either written or signed in his presence and therefore the evidence of PW1 does not establish execution of the cheque. The learned counsel also argued that even though PW1 deposed that the cheque was issued by the petitioner at the house of the first respondent, he has not deposed that he was even present at that time and in such circumstances, courts below should not have drawn the presumption under Section 139 of the Act that Ex. P2 cheque was issued in discharge of an existing debt or liability. It was also argued that there is no evidence to prove that Ex. P2 cheque was issued towards discharge of any existing debt or liability. The learned counsel also argued that Ex. P5, the original notice sent under Section 138(b) of the Act, was not served or refused by the petitioner and instead it is seen returned with the endorsement “petitioner left the address” and in such circumstances, it cannot be treated as a valid service of notice and therefore the learned Magistrate could not have taken cognizance of the offence or convicted the petitioner.

4. The learned counsel appearing for the first respondent argued that evidence of PW1 has to be appreciated in the light of the evidence tendered by the petitioner as DW1, as well as the defence raised by him. It was argued that the evidence of PW1 establishes that the cheque was issued by the petitioner towards the amount due to the first respondent and there is no serious challenge with regard to the consideration for the cheque or the liability spoken to by PW1. It was argued that the case of the petitioner that Ex. P2 cheque was handed over to Sukumaran, his Manager, who in turn handed it over to the first respondent was not proved as Sukumaran was not examined and it is proved to be an unbelievable story. It was argued that evidence of DW1 shows that he was aware that the cheque was with the first respondent and still he did not take any steps to get the cheque returned back and therefore, case of the petitioner was rightly disbelieved by the courts below and the evidence of PWl establishes that the cheque was issued towards discharge of an existing liability. Relying on the decision of the Apex Court in Rangappa v. Sri Mohan.1 The learned counsel argued that when cheque was drawn in the account maintained by the petitioner, which is not disputed, the presumption under Section 139 of the Act shall be drawn and if drawn, it establishes the existence of a legally enforceable debt or liability and therefore, conviction of the petitioner for the offence under Section 138 of the Act is perfectly legal. Learned counsel also argued that though petitioner would contend tha