The necessity of proving existing liability for upholding conviction under S.138 of the N.I. Act.

1 Accused in S. T. No. 3326/97 on the file of Judicial First Class Magistrate, Kodungallur is challenging his conviction and sentence for the offence under S.138 of N.I. Act as confirmed by the third Additional Sessions Judge, Thrissur in Crl. A. No. 364/01. First respondent was the complainant before court below. Case of first respondent in the complaint was that towards amount due, petitioner issued Ext. P1 cheque drawn in his account maintained in Eriyad Branch of South Indian Bank Limited and when cheque was presented for encashment under Ext. P2 it was dishonoured for want of funds and petitioner intimated dishonour and demanded amount covered by the cheque under original of Ext. P3 notice received by petitioner under Ext. P5 acknowledgment card and instead of paying the amount he sent Ext. P8 reply disputing liability and thereby he committed offence under S.138 of N.I. Act. Petitioner pleaded not guilty before the court below, First respondent/complainant examined himself as PW 1 and marked Exts. P1 to P8. Petitioner was examined as DW1 and Ext. D1 was marked. Learned Magistrate on the evidence found the petitioner guilty and convicted and sentenced him to simple imprisonment for three months and to pay compensation of Rs. 1.90.000/-. Petitioner Challenged conviction and sentence before the Sessions Court, Thrissur. Learned Additional Sessions Judge after reappreciating the evidence, as per judgment dated 29-5-2003 confirmed the conviction but modified sentence with regard to compensation providing that in default of payment of compensation petitioner has to undergo simple imprisonment for one month. That judgment is being challenged in the revision.

2 Revision petitioner would contend that courts below did not properly appreciate the evidence and first respondent has no capacity to pay the amount covered by Ext. P1 cheque and no amount was borrowed by the petitioner and therefore conviction and sentence is unsustainable.

3 Heard the learned counsel appearing for petitioner. Learned counsel would take me through the evidence of PW 1 and DW1 and argued that PW 1 is not a man of means to pay a loan of Rs. 1.90.000/- and courts below wrongly invoked the presumption that under S.139 of N.I. Act that Ext. P1 cheque is fully supported by consideration and on the evidence it should have been found that first respondent has no capacity to grant loan and Ext. P1 cheque was, not issued by petitioner for repayment of any loan and therefore conviction is unsustainable. Learned counsel also argued that complaint does not show that there was an earlier loan as claimed at the time of evidence and for that reason his evidence should not have been believed and therefore, conviction and sentence is unsustainable.

4 Learned Magistrate and learned Sessions Judge appreciated the evidence in detailed and found the evidence of PW 1 reliable. Exercising revisional jurisdiction of this court under S.401 of Cr. P. C it is not possible to reappreciate the evidence and come to a different conclusion, unless appreciation of evidence by the courts below was perverse or material evidence was not looked into by courts below or admissible evidence was not let in by the Trial Court or admissible evidence was disallowed by the appellate court. Petitioner did not point out any such omission. Ext. P1 cheque was admittedly drawn in the account maintained by the petitioner at Eriyad Branch of South Indian Bank Limited. Petitioner is also admitting the signature in Ext. P1. According to petitioner he issued Ext. P1 cheque not to first respondent but to one Sajeevan from whom he had borrowed. Rs. 10.000/- Both courts below found that petitioner did not examine Sajeevan and apart from his interested version, there is no evidence to prove that Ext. P1 cheque was issued to Sanjeevan as claimed by petitioner. On the evidence that findings cannot be challenged. If in fact petitioner had issued Ext. P1 cheque to Sajeevan, evidence of Sajeevan would have been the best e