IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 Crl.Rev.Pet.No. 1755 of 2009() ----------------------------------------- CRA.832/2007 of ADDL.SESSIONS COURT, KOTTAYAM ST.149/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, CHANGANACHERRY .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------- BINDHU SHAJI, NANDANAM (VALIYADATHU VADAKKETHIL), THRIKODITHANAM P.O., CHANGANACHERRY. BY ADV. MR.M.P.MADHAVANKUTTY RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT --------------------------------------------------------------------------------- 1. P. HARIHARAN, BIJU RAJ, PERUMPANACHY P.O., CHANGANACHERRY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO.1755 OF 2009 ---------------------------------------- Dated this the 8th day of June, 2009 ORDER Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not to the prejudice of respondent No.1. 2. Heard counsel for petitioner and Public Prosecutor. 3. This revision is in challenge of the judgment of learned Additional Sessions Judge, Kottayam in Crl. Appeal No.832/2007 confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying the sentence. According to respondent No.1, petitioner issued Ext.P1,cheque dated 4.6.2005 for Rs.1 ½ lakhs for the discharge of a legally enforceable debt/liability. That cheque was presented the same day for encashment but it was returned for insufficiency of funds. Respondent No.1 issued notice to the petitioner on 10.6.2005 intimating the dishonour and demanding payment of the amount. Notice was served on Crl.R.P.No.1755/09 2 the petitioner on 11.6.2005. Dishonour of the cheque for the reasons stated above is proved by Ext.P2. Issue and service of notice are proved by Exts.P3 to P5. Petitioner did not reply to the notice. Respondent No.1 gave evidence as PW1 and testified to his case. Contention raised by the petitioner is that she had no transaction with respondent No.1. It was suggested to respondent No.1 in the course of cross examination that husband of the petitioner, without her knowledge handed over the cheque to respondent No.1 but the latter denied that suggestion. Finding of the courts below that petitioner issued the cheque for discharge of a legally enforceable debt/liability is challenged in this revision. 2. Respondent No.1 has given evidence regarding the transaction and execution of the cheque. Petitioner does not dispute that Ext.P1 contained her signature and that it is drawn on the account maintained by her. Her contention is that her husband had, without her knowledge handed over the cheque to respondent No.1. But, apart from merely suggesting so to respondent No.1 which he denied, petitioner has not taken any effective steps to prove or probabilise that contention. It is pertinent to note that in spite of being Crl.R.P.No.1755/09 3 informed about dishonour of the cheque and demanding a fairly big amount petitioner did not even reply to the notice. Nothing is brought out in the evidence of respondent No.1 to disbelieve his version as to the transaction and execution of the cheque. It is in the above circumstances that courts below found that petitioner issued the cheque in favour of respondent No.1 as claimed by the latter. Petitioner has not succeed in rebutting the presumption under Section 139 of the Act, as well. There is no reason to interfere with the concurrent finding entered by the courts below in that regard. 3. Learned magistrate sentenced the petitioner to undergo Simple Imprisonment for three months and directed her to pay compensation of Rs.1 ½ lakhs and in default of payment to undergo Simple Imprisonment of one month. In appeal the substantive sentence was modified as Simple Imprisonment till rising of the court. Compensation was converted as fine of Rs.1,50,000/- and in default of payment to undergo Simple Imprisonment for two months. I do not find reason to interfere with the sentence as modified by the appellate court. 4. Learned counsel for petitioner requested for six Crl.R.P.No.1755/09 4 months time to deposit fine in the trial court. Considering the amount involved and also taking into account the fact that the cheque is of the year 2005, I am inclined to grant three months time to the petitioner to deposit the fine as directed by the appellate court. Resultantly, this revision petition fails and it is dismissed. Petitioner is granted three months’ time from today to deposit the fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 10.9.2009 to receive the sentence. Execution of warrant if any against the petitioner will remain in abeyance till 10.9.2009. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1755/09 5