IMPORTANT POINT
The execution of a cheque is proved, and the presumption of liability under Section 139 of the NI Act stands unless rebutted by the accused, which did not occur in this case.

ORDER :

P.V. Kunhikrishnan, J

The revision petitioner is the accused in S.T. No.1488/2015 on the file of the Judicial First Class Magistrate Court-III, Kottayam. It is a prosecution initiated against the petitioner alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act'). The revision petitioner is the accused and the 1^st respondent herein is the complainant in the above case. (hereinafter parties are mentioned in accordance with their status before the trial court).

2. The case of the complainant is as follows:

The accused had money transaction with the complainant. The accused, in discharge of his legally enforceable debt towards the complainant, issued a cheque dated 16.66.2015 of HDFC Bank, ATPAR Branch, Kottayam for Rs.12 lakhs. The complainant presented the cheque through its bankers SBT, Manarcadu. The cheque was dishonoured for the reason "Funds Insufficient." On 05.09.2015, the Bank intimated the complainant on dishonouring of the cheque. On 15.09.2015, the complainant issued a registered Lawyer's Notice to the accused. On 01.10.2015, the accused received the notice. The accused, however, did not pay the cheque amount and therefore, committed an offence under section 138 of the Negotiable Instruments Act.

3. To substantiate the case, PW1 to PW4 were examined. Exts.P1 to P9 were marked on the side of the complainant. After going through the evidence and documents, the trial court found that the accused is guilty of the offence under Section 138 of the NI Act and he was directed to undergo simple imprisonment till the rising of the court and to pay a fine of Rs.12,50,000/- (Rupees Twelve lakh fifty thousand only). In default of payment of fine, the accused was directed to undergo simple imprisonment for five months. If the fine amount is realized, there was a direction to the accused to pay the same to the complainant as compensation. Aggrieved by the conviction and sentence, the accused filed an appeal before the Additional Sessions Court-V, Kottayam. The Additional Sessions Judge, after going through the evidence and documents confirmed the conviction and sentence. Aggrieved by the same, this Criminal Revision Petition is filed.

4. Heard the learned counsel appearing for the petitioner/accused, the learned counsel appearing for the 1^st respondent/complainant and the learned Public Prosecutor.

5. Counsel for the petitioner/accused filed an argument note. The counsel submitted that the execution of the cheque is not proved in this case. It is also the case of the accused that, even if this Court found that the execution of the cheque is proved, the accused has rebutted the presumption under Section 138 of the NI Act by cross- examining the complainant. Several contentions were raised by the counsel for the petitioner/accused to support the above two grounds.

6. Counsel appearing for the 1^st respondent/complainant supported the impugned judgments and submitted that there is nothing to interfere with the impugned judgments.

7. This Court considered the contentions of the accused, the complainant and the Public Prosecutor. The first point raised by the accused is that the execution of the cheque is not proved. According to the accused, PW2 is the witness relied on by the complainant to prove the execution of the cheque. It is submitted that, he is not a reliable witness. It is also submitted that PW2 is an interested witness and he is a friend of PW1. As far as the execution of a cheque is concerned, only the friends or relatives of PW1 will be available at that time. This Court cannot say that independent witness should be present at the time of execution of the cheque. The trial court and the appellate court concurrently found that the execution of the cheque is proved in the light of the evidence of PW1 and PW2. The jurisdiction of the revisional court is very limited. This Court need not re-appreciate the evidence unless there is illegality, irregularity and impropriety. Several