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