The presumption under Section 139 of the Negotiable Instruments Act stands unless effectively rebutted by the accused with substantive evidence.

JUDGMENT :

P.G.Ajithkumar, J.

The petitioner is the accused in S.T.No.4042 of 2016 on the files of the Judicial Magistrate of the First Class, Chalakkdy. He was convicted and sentenced for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act). His appeal before the Sessions Court, Thrissur was dismissed. Hence, he filed this Revision Petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code).

2. Heard the learned counsel for the petitioner, the learned counsel for the 1st respondent and the learned Public Prosecutor.

3. The 1st respondent filed a complaint alleging that in discharge of the money due from the petitioner, he had issued a cheque for Rs.24 lakhs to the 1st respondent on 24.03.2015. When the cheque was presented for encashment, it was returned unpaid for want of sufficient funds in the account of the petitioner. A demand notice was sent and inspite of receipt of the same, the money due under the cheque as not paid.

4. The accusation was denied by the petitioner. PWs.1 to 3 were examined and Exts.P1 to P6 were marked by the 1st respondent to prove his case. Ext.X1 was also brought in evidence. During the examination under Section 313(1)(b) of the Code, the petitioner denied the evidence brought on record against him and stated that no amount was due from him to the 1st respondent. No defence evidence was however adduced.

5. The trial court after appreciation of the evidence found the petitioner guilty. The appellate court re-appreciated the entire evidence and found no reason to interfere with the findings of the trial court. The appeal was accordingly dismissed. The learned counsel for the petitioner would submit that execution of Ext.P1 was not duly proved. Relying on the oral testimony of PW1, who did not admittedly see filing up of the cheque, the courts below entered a finding that its execution was duly proved. Ext.X1 is the intimation issued from the bank of the 1st respondent regarding dishonour of the cheque. The handwriting in Ext.P1 cheque and also Ext.X1 intimation are similar, which according to the learned counsel for the petitioner, would substantiate that the cheque is a manipulated one. The petitioner had filed before the trial court two petitions, one for affording an opportunity to adduce evidence to prove the said similarity and another petition to requesting the trial court to compare the handwritings in Ext.P1 and Ext.X1. It is further contended that the petitioner was not provided opportunity to adduce further evidence and the trial court despite allowing the petition requesting a comparison by the court, did not do so. The further contention of the learned counsel is that inspite of specific denial by the petitioner that Ext.P1 lacked consideration, no evidence to prove passing of consideration was let in by the 1st respondent. Ext.P6 is an agreement executed between the petitioner and the 1st respondent. In the second and third pages of that document, the 1st respondent did not affix his signature. That fact was not reckoned with by the courts below while placing reliance on the said document. Therefore, the learned counsel would submit that evidence is totally lacking to prove that Ext.P1 was duly executed and it is supported by consideration.

6. The learned counsel for the 1st respondent, on the other hand, would submit that from the evidence of PW1 it is quite evident that Ext.P1 was brought filled by the petitioner and signed by him before PW1. That evidence is sufficient to prove the execution of the cheque. It is further contended that although the trial court failed to consider the handwriting in Ext.P1 and Ext.X1, the appellate court after comparison concluded that handwritings in both those documents were unlikely of the same person, and therefore the trial court's failure to compare those documents does not assume any importance. The learned counsel would further submit that the question is whether evidence on record