K. Hema, J.

1. The revision petitioner was convicted and sentenced by the Magistrate court to undergo simple imprisonment for a period of 5 months for offence under section 138 of the Negotiable Instruments Act, 1881 (for short the Act). The revision petitioner-accused was also directed to pay a sum of Rs.1,50,000/- as compensation under section 357(3) of Cr.P.C. and in default to undergo simple imprisonment for a period of 2 months.

2. In appeal, the conviction was confirmed by the Sessions Court but the sentence of 5 months was modified to simple imprisonment till rising of the court. The compensation was confirmed. The said conviction and sentence are challenged by the accused in Cr.R.P.No.4487 of 2006. The complainant filed a revision (Crl.R.P.3275/06) challenging the illegality of the sentence passed. Both these revisions are heard together and disposed of by this common judgment.

3. Facts briefly: (The parties will be referred to as complainant and accused, for convenience sake). The accused allegedly gave Ext.P1 cheque in discharge of a debt/liability which he owed towards the complainant. The cheque, on presentation, was dishonoured on the ground of insufficiency of fund. A notice was sent demanding payment but no payment was made. He, however, sent a reply notice. After complying with the legal requirements, complaint was filed alleging that the accused committed offence under section 138 of the Act.

4. Evidence was adduced on both sides. The accused set up a case that he is a contractor and that he used to supply materials in a lorry owned by the complainant between the period 14.3.2000 to 24.6.2000. As a security, he had entrusted a blank cheque with the complainant. Though the liability was settled, as evidenced by Ext.D1 and D1(a), the cheque was not returned, inspite of requests. Therefore, a stop memo was issued to the bank by the petitioner. He also gave a criminal complaint against the complainant which was taken on file as C.M.P.281/01 (Exts.D2 and D3). The accused does not owe any money to the complainant, but the blank cheque was misused by the complainant to foist a false case against him.

5. The Courts below, after consideration of the defence case found that it cannot be accepted. It was also held that, since the accuseds case is not acceptable, the complainants case is more probable. It was also held by learned Magistrate: when the execution and issuance of Ext.P1 cheque stands proved, complainant is entitled to get the benefit of presumption as envisaged under section 139 of the N.I. Act. By applying that presumption it can be seen that, Ext.P1 cheque was issued by the accused for discharging his legally enforceable liability towards the complainant. The lower appellate court concurred with the above findings and held that the Magistrate has has appreciated the evidence in the correct perspective there is no reason to interfere with the conviction passed by the lower court.

6. After hearing both sides and on perusal of the records in this case, particularly judgments of the court below, I find that the courts below committed a serious illegality in finding that the prosecution case is more probable because the accuseds version is not acceptable. In any criminal case, what the court has to primarily consider is whether prosecution has proved its case or not. The court is bound to look into all the materials available and both oral and documentary evidence adduced in the case and enter a finding whether all the ingredients of the offence are proved by the prosecution or not.

7. But, both the courts below analysed only the defence version and came to the conclusion that the accused failed to establish his case and hence, it was concluded that complainants case is more probable. It is needless to say that the probability of the prosecution case does not depend upon the improbability or falsity of the defence case. It may not be proper to enter a finding that the prosecution case is true only because the defe