JUDGMENT : A. BADHARUDEEN, J. 1. This criminal appeal is at the instance of the complainant in ST No.11/2007 on the files of the Judicial First Class Magistrate, Payyannur. The appellant assails judgment of acquittal recorded in the above case dated 03.12.2007. The 1 st respondent herein is the accused in the above case. The 2 nd respondent herein is the State of Kerala, represented by the learned Public Prosecutor. 2. Heard the learned counsel for the complainant/appellant and the learned Public Prosecutor in detail. Perused the trial court records. 3. I shall refer the parties in this appeal as 'complainant' and 'accused' for easy reference. 4. On dishonour of Ext.P1 cheque dated 10.12.2004 issued by the accused in favour of the complainant for the amount he alleged to be borrowed on 16.11.2004, the complainant approached the trial court and launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘NI Act’ for short) by the accused. 5. The trial court took cognizance for the offence punishable under Section 138 of the NI Act. During trial, PW1 was examined and Exts.P1 to P8 were marked on the side of the complainant. After questioning the accused under Section 313(1)(b) of Cr.P.C., when an opportunity was provided to the accused to adduce defence evidence, DW1 and DW2 were examined and Exts.D1 to D2 were marked. 6. Thereafter, the trial court acquitted the accused on appreciation of evidence, holding that the accused did not issue Ext.P1 cheque for discharge of the liability as alleged in the complaint, where the accused adduced evidence to establish his case that the cheque was issued by the complainant as security for another transaction. 7. In view of the arguments advanced, the questions arise for consideration are: 1. Whether the trial court wrongly acquitted the accused on the finding that he did not commit the offence punishable under Section 138 of the NI Act? 2. Whether the trial court verdict would require interference? 3. Order to be passed? Point Nos. 1 and 2 8. In this case, PW1 is the complainant and he filed chief affidavit and deposed regarding the transaction. According to him, the accused was familiar to the complainant and the accused borrowed an amount of Rs.60,000/- from the complainant on 16.11.2004 and issued Ext.P1 cheque dated 10.12.2004 to discharge the said liability. Point Nos. 1 and 2 8. In this case, PW1 is the complainant and he filed chief affidavit and deposed regarding the transaction. According to him, the accused was familiar to the complainant and the accused borrowed an amount of Rs.60,000/- from the complainant on 16.11.2004 and issued Ext.P1 cheque dated 10.12.2004 to discharge the said liability. He further deposed about presentation of the cheque for collection, its dishonour, issuance of legal notice and its return as ‘unclaimed’. It was through PW1, apart from Ext.P1, Ext.P2 cheque return memo, Ext.P3 copy of lawyer notice, Ext.P4 postal receipt, Ext.P5 returned lawyer notice, Exts.P6 to P8 lawyer notices sent by the accused to the complainant. 9. PW1 was cross-examined by the learned counsel for the accused suggesting that he had been conducting steel marketing company in Pilathara and he had visiting card in the same name with his mobile number. The same was denied by PW1 stating that the phone number in the visiting card is that of his brother and not of him. Later, the visiting card was tendered in evidence through DW1, the accused himself. As regards execution of Ext.P1 cheque, PW1 deposed that Ext.P1 was written and signed by the accused in his presence. It was suggested during cross-examination that Ext.P1 cheque was issued on 10.2.2004 as blank signed one towards security when the complainant undertaken the work of paving interlock bricks at the house of the accused and his brother Abdul Kareem. It was also suggested that out the agreed amount, Rs.38,000/- was not paid as the work was not properly done and there was breakage in the interlock bricks, paved in the court yard. Those suggestions were denied by PW1. DW1 is none other than the accused and he deposed about the entrustment of the work to lay interlock bricks at the house of accused and his brother at the intervention of one Balakrishnan for a total sum of Rs.1,20,000/-. According to DW1, there was an agreement to lay interlock bricks at the court yards of the house of the accused and his brother and the complainant offered 20 years guarantee for the interlocks with assurance that the same were defect free and further the same were capable of holding 20 ton weight. According to DW1, there was an agreement to lay interlock bricks at the court yards of the house of the accused and his brother and the complainant offered 20 years guarantee for the interlocks with assurance that the same were defect free and further the same were capable of holding 20 ton weight. According to DW1, Ext.D1 is the visiting card issued by the complainant at the time of entrusting the work and the work was completed in the year 2003. Rs.60,000/- was paid in cash in this deal and it was agreed to pay the remaining amount orally. When the accused demanded Ext.P1 cheque leaf for the remaining amount for Rs.60,000/- and he had issued Ext.P1 cheque by putting date as 10.2.2004. Later, Rs.17,000/- was paid during the month of November and Rs.15,000/- during the 1 st week of December. Since PW1 did not lay interlocks of the required quality as agreed, thereby the remaining amount was not paid. Ext.D2 series photographs showing the lie of the interlocks also produced before the court and was marked recording objection of the complainant. 10. According to the learned counsel for the complainant, since the evidence of PW1 as regards execution of Ext.P1 is proved by his evidence, he is entitled to get the benefit of presumptions available under Sections 118 and 139 of the NI Act in his favour though the presumptions are rebuttable. Per contra, the argument advanced by the learned counsel for the accused is that on evaluating the case put up by the complainant and that of the accused, the accused had a consistent case that Ext.P1 cheque was issued towards the balance amount for the work of laying interlocking bricks done by the complainant. Further, Rs.32,000/- was also paid and the remaining amount was not paid as the work was not done by the complainant satisfactorily, as agreed. 11. In the instant case, there is no agreement in writing to show that there was entrustment of the work of laying interlocking bricks as contended by the accused. Ext.D1, the alleged visiting card of the complainant, is the evidence let in by the accused to prove the same, even though during cross-examination, it was confronted to PW1 suggesting so and denied by PW1. Here, the admitted case of the accused is that Ext.P1 cheque was issued on 10.02.2004 for Rs.60,000/- towards the balance amount for the work done. Ext.D1, the alleged visiting card of the complainant, is the evidence let in by the accused to prove the same, even though during cross-examination, it was confronted to PW1 suggesting so and denied by PW1. Here, the admitted case of the accused is that Ext.P1 cheque was issued on 10.02.2004 for Rs.60,000/- towards the balance amount for the work done. The accused also had a case that out of which Rs.32,000/- (17,000 + 15,000) already paid. In order to prove payment of Rs.17,000/- and Rs.15,000/-, as deposed by PW1, no documentary evidence forthcoming. It is true that DW2, Balakrishnan, it was through whom the work was allegedly entrusted to PW1 was examined to prove entrustment of the work and also repayment of Rs.32,000/- (17,000 + 15,000) through him after issuance of Ext.P1. He deposed that the remaining amount was not paid since the work was of bad quality. It is interesting to note that even though as per the admitted case of the accused, cheque was issued for Rs.60,000/- towards the balance of work and out of which Rs.32,000/- was repaid, no receipt was obtained from the complainant to show partial discharge of the amount covered by the cheque. Similarly, accused has no case that the balance amount also was repaid. Instead the case put up by the accused is that the said amount was not paid as the work was of bad quality, but the said contention not proved by convincing evidence and Ext.D2 photograph marked in evidence is quite insufficient to do so. 12. According to the learned counsel for the complainant, even after issuance of demand notice, no reply notice was sent. In the instant case, the demand notice was returned unclaimed. It is interesting to note that even though the demand notice was issued on 20.05.2005, no reply sent. But a reply narrating the defence case as stated was issued as per Exts.P7 and P8 only on 29.08.2006 at a much belated stage. 13. In the instant case, the demand notice was returned unclaimed. It is interesting to note that even though the demand notice was issued on 20.05.2005, no reply sent. But a reply narrating the defence case as stated was issued as per Exts.P7 and P8 only on 29.08.2006 at a much belated stage. 13. The crucial question to be decided herein is whether the case put up by the complainant as to borrowing of Rs.60,000/- on 16.11.2004 and issuance of Ext.P1 cheque dated 10.12.2004 with assurance of discharge of the said liability is established by the complainant or the case advanced by the accused as regards issuance of Ext.P1 cheque for the remaining amount comes to Rs.60,000/- for the work of laying of interlocking bricks is to be believed. The evidence tendered by PW1 is that Ext.P1 cheque was issued to discharge the liability of Rs.60,000/- which was borrowed by the accused on 16.11.2004. According to the accused, Ext.P1 cheque was issued for Rs.60,000/- towards the balance of work laying interlocking bricks done at the house of the accused and his brother. According to DW1, out of which Rs.32,000/- was not paid as the work of laying of interlocking bricks was not done properly as assured. As already pointed out, there is no documentary evidence forthcoming to show payment of Rs.32,000/- after issuance of Ext.P1 cheque as contended by the accused apart from their oral version as DW1 and DW2. When evaluating the case put up by the accused, there is no reason to disbelieve the case of the complainant that Ext.P1 was issued for the amount borrowed by the accused from the complainant on 16.11.2004 where issuance of Ext.P1 for Rs.60,000/- towards the balance amount due for the work the complainant had done is the defence case. In such view of the matter, it is held that the trial court went wrong in finding that the case of the accused is more probable and the accused did not issue Ext.P1 cheque for the discharge of the liability as alleged in the complaint. In view of the above, the verdict under challenge would require interference. In the result, this appeal stands allowed and the verdict under challenge is interfered and set aside. In view of the above, the verdict under challenge would require interference. In the result, this appeal stands allowed and the verdict under challenge is interfered and set aside. Consequently, the accused is convicted for the offence punishable under Section 138 of the NI Act and he is sentenced to undergo simple imprisonment for a day till rising of the court and to pay fine of Rs.1,00,000/- (Rupees one lakh only). Fine shall be given as compensation to PW1 under Section 357(1)(b) of Cr.P.C. In default of payment of fine, the accused shall undergo default imprisonment for a period of four months. The accused is directed to appear before the trial court at 11 am on 25.07.2025 to undergo the modified sentence. On failure to do so, the trial court is directed to execute the modified sentence imposed by this Court without fail. Registry is directed to forward a copy of this judgment to the trial court forthwith for information and compliance.