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. 2532 of 2009() ------------------------------ CRA.640/2006 of ADDL. DISTRICT & SESSIONS COURT, FAST TRACK-I, TRIVANDRUM ST.257/2006 of JUDICIAL FIRST CLASS MAGISTRATE-II, VARKALA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- SHAJI, W/O.JAMAL, SALMA MANZIL, PARAYIL DESOM, EDAVA VILLAGE. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.P.K.NIJOY SMT.NISHA G.THARAMAL RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JAYASREE, D/O.PURUSHOTHAMAN, AGED 32 YEARS, KALLUVILA VEEDU, KURAKKANI DESOM, VARKALA VILLAGE. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 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.2532 of 2009 -------------------------------------- Dated this the 6th day of August, 2009. ORDER Public Prosecutor takes notice for respondent No.1.Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to her. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast TrackCourt-I, Thiruvananthapuram in Crl.Appeal No.640 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.2 claimed that petitioner borrowed Rupees one lakh from her on 16.1.2003 and for discharge of that liability issued Ext.P1, cheque dated 16.2.2005. Dishonour of that cheque for insufficiency of funds is proved by Ext.P2. Service of statutory notice on petitioner is proved by Exts.P3 to P5. Respondent No.2 gave evidence as PW1 and claimed that petitioner borrowed the amount from her on 16.1.2003 and for discharge of that liability issued Ext.P1. Petitioner denied that she had any transaction with respondent No.2. Courts below found in favour of due execution of the cheque. The contention raised is that due execution of the cheque is not proved. 3. Respondent No.1 in her evidence as PW1 stated that she had availed a loan from the District Co-operative Bank, Varkala Branch and that Crl.R.P.No.2532/2009 2 amount was lent to the petitioner in connection with the marriage of daughter of the petitioner. She denied the suggestion that husband of petitioner and herself were friends and that she somehow got the custody of the cheque from the house of the petitioner. 4. So far as evidence of respondent No.1 is concerned, courts below have observed that there is no reason to disbelieve her. Petitioner has not replied to the statutory notice served on her. There is no reason to think that respondent No.2 got possession of the cheque in the circumstances stated by the petitioner. If respondent No.2 stealthily obtained the cheque, in the normal course petitioner would have replied to the statutory notice. On going through the judgments under challenge and hearing learned counsel I do not find reason to interfere with the concurrent finding of the courts below regarding due execution of the cheque. Petitioner has failed to rebut the presumption under Section 139 of the Act and as such no interference is required with the conviction of petitioner. 5. In modification of the sentence awarded by the learned magistrate, appellate court has sentenced the petitioner to undergo simple imprisonment till rising of the court and payment of fine of Rupees one lakh with a default sentence of imprisonment for six months. There is a direction that if the fine is realized it will be paid to respondent No.2 as compensation. There is no reason to interfere with the sentence as modified by the appellate court, at the instance of petitioner. 6. Learned counsel requested that petitioner may be granted time to Crl.R.P.No.2532/2009 3 deposit fine. It is stated that petitioner on account of financial difficulties is unable to raise the amount immediately. Having regard to the circumstances stated by learned counsel and the amount involved I am inclined to grant time to the petitioner till 22.12.2009 to deposit fine in the trial court as ordered by the appellate court. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 22.12.2009 to deposit fine in the trial court. Petitioner shall appear in the trial court on 23.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks