ORDER
M. Sasidharan Nambiar, J.
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 Section 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 Ex. P2 it was dishonoured for want of funds and petitioner intimated dishonour and demanded amount covered by the cheque under original of Ext. P5 notice received by petitioner under Ext. P5 acknowledgement card and instead of paying the amount he sent. Ext. P5 reply disputing liability and thereby he committed offence under Section 138 of N.I. Act. Petitioner pleaded not guilt before the Court below. First respondent/complainant examined himself as PW1 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 Court, Thrissur. Learned Additional Sessions Judge after re-appreciating 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 PW1 and DW1 and argued that PW1 is not a man of means to pay a loan of Rs. 1,90,000/- and Courts below wrongly invoked the presumption that under Section 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 but 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 detail and found the evidence of PW1 reliable. Exercising revisional jurisdiction of this Court under Section 401 of Cr.P.C. it is not possible to re-appreciate 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. PI. According to petitioner he issued Ext. P1 cheque not to first respondent but to one Sajecvan 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 Sajeevan 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 evidence to prove that Ext. P1 cheque was not issued to PW1. More so, no valid explanation was offered. Apart from the allegation made by petitioner there is no evidence to prove that Ext. P1 cheque was issued by petitioner to Sajecvan.
5. Courts below rightly found that in the light of contentions of petitioner, execution of Ext. P1 cheque is admitted. Naturally presumption available under Sections 118 and 139 of N.I. Act is available to first respondent. Moreover, as PW1 first respondent deposed that Ext. P1 cheque was issued by petitioner towards repayment of the amount borrowed by him. Argument of learned Counsel appearing for petitioner is that the original loan was not pleaded in the complaint and therefore evidence of PW1 on that aspect cannot be looked into. It is not necessary for a complaint to plead in the complaint the details as to how liability towards cheque arose. He need only plead and prove that cheque was issued towards discharge of existing liability and it was presented for encashment and dishonoured for want of funds and he has complied with all statutory formalities provided under the Act. First respondent has specifically pleaded in the complaint itself that petitioner issue Ext. P1 cheque for the amount due. Therefore, I cannot agree with the argument of learned Counsel appearing for the petitioner that for the failure of petitioner to plead that Ext. P1 cheque was issued towards the particular existing liability, petitioner has to be acquitted. It was pleaded that Ext. P1 cheque was issued towards repayment of amount due. That is sufficient pleadings, learned Counsel appearing for the petitioner would argued that PW1 is not a man of means as it was admitted by him from the box that he has no money at that time. Evidence of PW 1 Was appreciated by both the Courts below. PW 1 explained how he paid the amount, some portion of the amount was obtained by pledging the ornaments of his wife and some portion of the amount was obtained on bidding the chitty and a portion of the amount was advanced to him by his brother. Balance was available with him from his business. I cannot agree with the argument of the learned Counsel that evidence of PW 1 is not sufficient enough to prove that he granted loan as deposed by him. Courts below appreciated the evidence. The appreciation of evidence was not perverse. I find no reason to differ from the evidence. Evidence therefore establish that Ext. P1 cheque was issued by the petitioner towards amount due to first respondent. Evidence of PW 1 with Ext. P 1 establish that when cheque was presented for encashment under Ext. P 2 it was dishonoured for want of funds. Petitioner has no case that he had sufficient amount in his account to honour Ext. P 1 cheque. Ext. P3 establishes that within the statutory period petitioner was informed about dishonour and first respondent demanded the amount. Complaint was also lodged within the statutory period. Therefore, first respondent has complied with all statutory formalities provided under Sections 138 and 142 of N.I. Act. Conviction under Section 138 of N.I. Act is perfectly correct and warrants no interference.
6. Then the only question is with regard to sentence. Learned Magistrate sentenced the petitioner to simple imprisonment for three months and also to pay compensation of Rs. 1,99,000/-. Though learned Magistrate did not impose any default sentence, learned Sessions Judge has directed that petitioner has to undergo simple imprisonment for one more month, if compensation is not paid. In the circumstances, I find no reason to interfere with the sentence also. Revision failed and is dismissed.