PADMANABHAN S Vs. VASUDEVAN NAMBOODIRI M G

JUDGEMENT

(1.) Petitioner, the accused in CC No. 1270 of 2002 on the file of Chief Judicial Magistrate, Ernakulam was convicted and sentenced for the offence under S.138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act' for short). Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl. Appeal No. 211 of 2005. The learned Additional Sessions Judge on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision.

(2.) Learned counsel appearing for the revision petitioner and the first respondent were heard.

(3.) The argument of the learned counsel appearing for the revision petitioner is that both the courts below did not properly appreciate the evidence and wrongly convicted the petitioner. It was argued that presumption under S.139 of the Act could be drawn only if it is admitted that petitioner has drawn the cheque or it is proved that the petitioner had executed the cheque in favour of the first respondent and when there is no admission and evidence to prove the execution, the conviction is unsustainable. The learned counsel argued that first respondent was not examined and on his behalf the Manager was examined as PW 1 and the evidence of PW 1 does not show that the cheque was either written or signed in his presence and therefore the evidence of PW 1 does not establish execution of the cheque. The learned counsel also argued that even though PW 1 deposed that the cheque was issued by the petitioner at the house of the first respondent, he has not deposed that he was even present at that time and in such circumstances, courts below should not have drawn the presumption under S.139 of the Act that Ext. P2 cheque was issued in discharge of an existing debt or liability. It was also argued that there is no evidence to prove that Ext. P2 cheque was issued towards discharge of any existing debt or liability. The learned counsel also argued that Ext. P5, the original notice sent under S.138(b) of the Act, was not served or refused by the petitioner and instead it is seen returned with the endorsement "petitioner left the address" and in such circumstances, it cannot be treated as a valid service of notice and therefore the learned Magistrate could not have taken cognizance of the offence or convicted the petitioner.