The revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the ‘N.I. Act’, concurrently, by the two inferior courts. The learned Magistrate, on his conviction, had sentenced him to undergo simple imprisonment for three months and to pay a sum of Rs.3 lakhs as compensation and in default to undergo simple imprisonment for three months. Confirming the conviction, in appeal, the learned Sessions Judge modified the sentence reducing the substantive term of imprisonment to one day, till the rising of the court, retaining the sum of compensation, but, converting it to one of fine, reducing the default term of imprisonment to two months. Fine amount, if realized, was directed to be paid as compensation to the complainant. Feeling aggrieved, the accused has preferred this revision.

2. Notice given, the 1st respondent/complainant has entered appearance. I heard the counsel on both sides. The main thrust of attack pressed into service by the learned counsel for the petitioner/accused, to assail his conviction concurrently rendered by the two inferior courts, is that the challenge against the execution of Ext.P1 cheque, and, also the denial of the transaction with the complainant over that instrument, was not appreciated and considered in accordance with the settled principles of law. The defence canvassed by the accused that Ext.P1 cheque in blank form with signature alone was handed over to the complainant in relation to a totally different transaction, in respect of which oral and documentary evidence was placed, was discarded by the court below overlooking that defence version need be shown only as probable and it need not be proved with meticulous precision for its acceptance, according to the counsel. The application moved by the accused before the appellate court permitting him to lead additional evidence to prove the documents already tendered, and also to examine one more witness, was not considered nor any order passed on such application before entering into a decision on the merits of the appeal and that has caused great prejudice and denial of justice to the accused, is the submission of the counsel. The learned counsel relied on NarayanaMenon v. State of Kerala (2006 (3) KLT 404), Krishna Janardhan Bhat, v. Dattatraya Hegde (2008 (1) KLT 425 (SC)), Kumar Exports v. Sharma Carpets (2009 (1) KLT 197 (SC) and Padmanabha v. Vasudevan Namboodiri (2010 (3) KLT 216) to support the challenges raised that where execution of the cheque is denied it has to be proved, to draw the presumptions covered by the Statute, and, also, that the burden of proof cast upon the accused to rebut such presumptions, and also the defence, if any, raised even if it is shown that the cheque was handed over by him, has to be tested on the preponderance of probabilities. The learned counsel has also drawn my attention to the decision in Rangappav. Mohan (2010 (2) KLT 682 (SC)) wherein some of the observations made in Krishna Janardhan Bhat’s case (cited supra) have been found to be not correct, submitting that the ratio of the decision in Krishna Janardhan Bhat’s case (cited supra) that the question as to whether the presumption stood rebutted or not has to be determined keeping in view the other evidence on record still remain undisturbed and intact. Both the courts below have not appreciated the evidence tendered in the case, more particularly, the defence evidence in examining whether the presumptions stood rebutted especially where the execution of the cheque which was disputed was not established, and as such, the drawing of the presumption to sustain the complainant’s case was impermissible, is the submission of the counsel. Conviction of the accused is, therefore, patently erroneous and liable to be set aside, submits the counsel.

3. Per contra, the learned counsel appearing for the 1st respondent/complainant pointing out the limited scope of exercise of revisiona