IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2533 of 2009()
1. ANNAMMA ABRAHAM, OLUTHARA HOUSE,
... Petitioner
Vs
1. SAJAN C.CHACKO, PARAKATTIL HOUSE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.GEORGE ZACHARIAH ERUTHICKEL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/08/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2533 of 2009
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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
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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
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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.
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