IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 Crl.Rev.Pet.No. 2460 of 2009() ------------------------------ CRA.1031/2008 of CC.528/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------- B.SANTHAKUMARI, AGED 63 YEARS, W/O.RAMACHANDRA MENON, C.C.NO.14/1828A, K.K.VISWANATHAN ROAD, COCHIN-5. BY ADV. SRI.T.MADHU RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SADANANDA KAMATH, AGED 49 YEARS, S/O.VENKITESHWARA KAMATH, RESIDING AT CC VIII/857, LIG-57, SANTHI NAGAR, KOOVAPADOM, KOCHI-2, MATTANCHERY VILLAGE, KOCHI TALUK. R1 BY PUBLIC PROSECUTOR SRI. JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- THOMAS.P.JOSEPH, J - - - - - - - - - - - - - - - - - - - - - Crl. R.P.No.2460 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of August, 2009 O R D E R This revision is in challenge of judgment of learned Addl. Sessions Judge (Ad-hoc) II, Ernakulam in Crl. Appeal No.1031 of 2008 confirming conviction but modifying sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act (for short, 'the Act'). Notice to respondent No.2 is dispensed with in view of the order, I propose to pass in this revision which is not prejudicial to respondent No.2. 2. According to respondent No.2, petitioner borrowed Rs.2,50,000/- (Rupees Two lakhs fifty thousand only) from him and for repayment of that amount issued Ext.P1, cheque dated 17.3.2005. 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. Petitioner sent Ext.P7, reply. Respondent No.2 gave evidence as PW1 and stated to his case. Crl. R.P.No.2460 of 2009 2 According to the petitioner, she had no transaction with respondent No.2. Instead, in the year, 2001 she had borrowed Rs.70,000/- from DW1, brother of respondent No.2 and Ext.P1 was given to DW1 as security. That cheque has been misused. DW1 denied that he had any transaction with petitioner or, taken Ext.P1 as security. Courts below found in favour of due execution of the cheque. It is contended by learned counsel that the finding is not correct. 3. It is not disputed that Ext.P1 contained signature of petitioner and that the said cheque is drawn on the account maintained by her. Though she has a case that she had borrowed Rs.70,000/- from DW1 and the cheque was given to DW1 as a security, there is no evidence in that line, DW1 having denied that. Petitioner has not adduced any evidence as brought out circumstance to show that the cheque was given to DW1 in the circumstances stated by her. Respondent No.2 also denied the suggestion in that line. There was no reason to disbelieve the evidence of Crl. R.P.No.2460 of 2009 3 respondent No.2 regarding transaction and execution of the cheque. Courts below considered the evidence and found in favour of due execution of the cheque for discharge of a legally enforceable debt/liability. I do not find reason to interfere with that finding in revision. Petitioner has failed to rebut the presumption under section 139 of the Act. Conviction therefore is unassailable. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months, directed payment of fine of Rs.3 lakhs and in default of payment, to undergo further imprisonment for six months. Learned Addl. Sessions Judge modified the sentence as simple imprisonment till rising of the court, fine of Rs.2,50,000/- and default sentence of imprisonment for three months. Having regard to the nature of the offence, there is no reason to interfere that the sentence as modified by learned Additional Sessions Judge. There is also no reason to interfere with the amount of fine imposed by learned Additional Sessions Judge at the instance of petitioner. Crl. R.P.No.2460 of 2009 4 5. Learned counsel requested that petitioner may be granted six months time to deposit the fine. According to the learned counsel, petitioner is unable to raise the entire amount immediately. Considering the circumstances stated by learned counsel, petitioner is granted time till 30.12.2009 to deposit the fine. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 30.12.2009 to deposit fine as ordered by learned Additional Sessions Judge. The amount if any deposited by petitioner in any of the courts below shall be adjusted in the fine payable by her. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then, execution of warrant if any against the petitioner will remain in abeyance. THOMAS.P.JOSEPH, JUDGE. app/-