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. 2533 of 2009() ------------------------------ CRA.325/2007 of ADDL.SESSIONS COURT (SPECIAL), KOTTAYAM CC.244/2004 of JUDL.MAGISTRATE OF FIRST CLASS-III, 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. SAJAN C.CHACKO, PARAKATTIL HOUSE, PAKKIL P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 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.2533 of 2009 -------------------------------------- Dated this the 6th day of August, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge(Special), Kottatyam in Crl.Appeal No.325 of 2007 confirming conviction but modifying sentence imposed on petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.1 filed a private complaint alleging that petitioner borrowed Rs.1,10,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 10.7.2003. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2, P3 and P7. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.1 gave evidence as PW1 and asserted that petitioner borrowed the amount from him and for its repayment issued the cheque. Contention raised by petitioner is that her husband got some amount from the brother of respondent No.1 and gave her cheque as security without her knowledge. That contention did not find favour with the courts below. It is contended by learned counsel that due execution of the cheque is not proved. Learned counsel placed reliance on the decision in Crl.r.p.No.2533/2009 2 Bhaskaran Nair C. v. B. Mohan and another (2009 (2) KLJ 473) in particular paragraph seven (7) of that decision. 3. No doubt, question of raising a presumption, be it under Section 118 or 139 of the Act would arise only on admission or proof of due execution of the cheque. It is true that admission or proof of signature did not tantamount to admission or proof of the instrument but it went a long way in proving due execution of the cheque. That is because prudence do not permit a reasonable person to handover signed blank cheque to another person. In this case respondent No.1 has given evidence as PW1 and stated that petitioner has signed the cheque in his presence. Ext.P8 is the account opening form of petitioner. No dissimilarity in the signature could be pointed out by the petitioner. The drawee bank did not find any dissimilarity in the signature as is evident from the fact that dishonour is only for insufficiency of funds. Petitioner did not also reply to the notice served on her. There is no evidence to prove the claim of petitioner that her husband had borrowed money from the brother of respondent No.1 and cheque was given in connection with that transaction. In these circumstances, courts below found that there is no reason to disbelieve the evidence of respondent No.1 regarding the transaction and execution of the cheque. I do not find reason to differ from that finding. Thus, due execution of the cheque is proved. Petitioner has not rebutted the presumption under Section 139 of the Act. Conviction therefore does not require interference. 4. In modification of the sentence awarded by learned magistrate, appellate court sentenced petitioner for payment of fine of Rs.1,10,000/- and Crl.r.p.No.2533/2009 3 imposed default sentence of imprisonment for two months. It was directed that if fine is realized the same will be paid to respondent No.1 as compensation. I do not find reason to interfere with the sentence as modified by appellate court, at the instance of petitioner. 5. Learned counsel submitted that petitioner is involved in another case of similar nature also, is financially not sound and finds it difficult to raise the entire amount immediately. Learned counsel requested that petitioner may be granted six months’ time to deposit the fine. Considering the circumstances stated by learned counsel and the amount involved I am inclined to grant time to the petitioner till 5.1.2010 to deposit fine in the trial court. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 5.1.2010 from today to deposit the fine in the trial court as ordered by the appellate court. In case of non-compliance petitioner shall appear in the trial court on 7.1.2010 to receive the default sentence. Until then, execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks