IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 CRL.REV.PET.NO. 2526 OF 2009() -------------------------------------------- CRA.625/2007 OF SESSIONS COURT, KOTTAYAM ST.825/2006 OF JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------ ANNAMMA ABRAHAM, OLUTHARA HOUSE, CHENGALAM P.O., KOTTAYAM. BY ADV. SRI.GEORGE ZACHARIAH ERUTHICKEL RESPONDENT(S): RESPONDENTS/COMPLAINANT ------------------------------------------------------------------- 1. NIZAM T.A., THADATHIL PARAMBIL HOUSE, M.L.ROAD, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2526 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of August, 2009 O R D E R -------------- Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass which is not prejudicial to him. Public Prosecutor took notice for respondent No.2. 2. This revision is in challenge of judgment of learned Sessions Judge, Kottayam in Crl. Appeal No.625 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.1,40,000/- from him in June, 2006 and issued Ext.P1, cheque dated 2.8.2006 for repayment of that amount. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.1 gave evidence as P.W1 and testified to his case. Petitioner contended that she had no transaction with respondent No.1 nor, issued any cheque to him. She claimed that her husband might have given the cheque to respondent No.1 without her knowledge. That contention did not find favour with the courts below which found her CRL. R.P. No.2526 of 2009 -: 2 :- guilty. Petitioner contended that due execution of the cheque is not proved and hence the question of drawing presumption under Sec.139 of the Act did not arise. Learned counsel for petitioner placed reliance on the decision in Bhaskaran Nair v. B. Mohan and Another (2009(2) KLJ 473) and in particular the observations in paragraph 7 of that decision. 3. Respondent No.1 has given evidence that petitioner brought the cheque filled up and signed the same in his presence. Petitioner claimed that the signature in Ext.P1 is not of her. No serious attempt was made to challenge the evidence of respondent No.1 that petitioner signed the instrument in his presence. Courts below accepted that evidence and I find no reason to differ. It is not disputed that the cheque is drawn on the account maintained by petitioner. In the decision cited supra it is observed that question of drawing presumption under Sec.139 of the Act arose only when due execution of the cheque is either admitted or proved. That was a case where trial court took the view that execution of the cheque is not proved and consequently acquitted the accused. Complainant took up the matter in appeal. Appellate court on an appreciation of the evidence found that due execution is not proved and hence presumption under Sec.139 of the Act could not be drawn. Accordingly CRL. R.P. No.2526 of 2009 -: 3 :- the appeal was found to be devoid of merit. Sitting in revision what I have to look into is whether the finding of the courts below is legal and proper. 4. It is admitted that statutory notice was served on petitioner but she did not reply to it. If actually no amount was due to respondent No.1 and as claimed by petitioner her blank signed cheque leaf was handed over by her husband to respondent No.1 the first occasion for her to deny the execution of the cheque was when she received the statutory notice. I do not forget that as an accused in a criminal case petitioner was entitled to remain silent but her failure to reply to the statutory notice is something which has to be borne in mind while considering the evidence of respondent No.1 regarding execution of the cheque. Nothing is brought out to disbelieve the evidence of respondent No.2. There is no circumstance to hold that respondent No.1 got the cheque in the circumstances stated by petitioner. I find no irregularity, illegality or impropriety in the concurrent finding entered by the courts below as to the due execution of the cheque. Presumption under Sec.139 of the Act steps in. That presumption is not rebutted by petitioner either by adducing evidence or bringing out circumstances in the evidence of respondent No.1. As such I find no reason to interfere with the conviction. CRL. R.P. No.2526 of 2009 -: 4 :- 5. Learned Sessions Judge in modification of the sentence imposed a fine of Rs.1,40,000/- with the default sentence and with a direction that the fine if realised will be paid to respondent No.1 as compensation under Section 357(1) of the Code of Criminal Procedure. There is little reason to interfere with the sentence as modified by the appellate court, at the instance of petitioner. 6. Counsel for petitioner requested six months’ time to deposit the fine. Counsel submits that petitioner is unable to raise the amount immediately. Having regard to the amount involved and circumstances stated by counsel I am inclined to grant time till 30.12.2009 to deposit fine in the trial court. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 30.12.2009 to deposit the fine in the trial court and in case of non-compliance she shall appear in the trial court on 31.12.2009 to receive the default sentence. THOMAS P.JOSEPH, JUDGE. vsv