A.K. Narayanan v. Thomas Mathew and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938** **Crl.Rev.Pet.No. 3986 of 2006 (C) --------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.431/2005 of ADDITIONAL SESSIONS COURT-I,MAVELIKKARA DATED 30-06-2006** **AGAINST THE JUDGMENT IN CC 501/2004 of J.M.F.C-I, HARIPAD DATED 26-05-2005** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **------------------------------** **A.K.NARAYANAN, S/O.AYYAPPAN, PERMANENTLY RESIDING AT SINDHU NIVAS, PUTHUKANDAM, KARTHIKAPPALLY POST, KARTHIKAPPALLY.** **BY ADV. SRI.P.KURUVILLA JACOB** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE:** **-----------------------------------------------** **1. THOMAS MATHEW, S/O.THOMAS, OOPPERIL HOUSE, KARTHIKAPPALLY POST, ERIKKAVU MURI, KUMARAPURAM VILLAGE.** **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. C.N. PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.3986 of 2006 ---------------------------------------------Dated this the 25[th] day of October, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal 431/1995 of Additional Sessions Judge-I, Mavelikkara. He was the accused in C.C. No.501/2004 of Judicial First Class Magistrate Court-I, Haripad, which was filed u/s.138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). The learned Magistrate convicted the accused and sentenced to simple imprisonment for six months u/s.138 of the N.I. Act and compensation of 80,000/-₹ u/s.357(3) Cr.P.C., in default simple imprisonment for three months. Against that, he preferred the above criminal appeal before Additional Sessions Judge-I, Mavelikkara, where the learned Sessions Judge modified the sentence to simple Crl.R.P.No.3986/2006 2 imprisonment for one month and compensation awarded by the trial Court was confirmed. Being aggrieved by that, the accused preferred this revision petition. 2. The complainant's case in the trial Court is that on 19.05.2004 the accused had borrowed a sum of 85,000/-₹ from him and in discharge of that liability, he issued Ext.P1 cheque. When Ext.P1 was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant demanded the amount by giving a notice in writing, but there was no payment. Hence, the complaint. To prove the offence, the complainant was examined as PW1 and his documents were marked as Exts.P1 to P6. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Magistrate convicted him. 3. When the revision petition came up for hearing, the learned counsel appearing for the revision petitioner Crl.R.P.No.3986/2006 3 submitted that the revision petitioner is no more. In the circumstances, this Court directed the Circle Inspector, Haripad to produce the Death Certificate of the revision petitioner. Accordingly, the Circle Inspector, Haripad produced the Death Certificate issued from Karthikappally Grama Panchayat, which is marked as Ext.C1. As per Ext.C1, the revision petitioner died on 04.11.2013. 4. According to Section 394 Cr.P.C., every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. Section 394 Cr.P.C. reads as follows: **“394. Abatement of appeals.-** (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Provided that where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. Explanation .-In this section “near relative” means a parent, spouse, lineal descendant, brother or sister.” Proviso says that if the appeal is against a conviction and Crl.R.P.No.3986/2006 4 sentence of death or of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. According to Section 394(2) Cr.P.C., every other appeal (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. But in case of revision even after the death of the revision petitioner, the revision would survive. S.394 Cr.P.C. applies only to appeals alone and in the absence of any statutory provision, High Court has power to pass appropriate orders in exercise of its revisional jurisdiction. 5. Five Judges Bench of the Apex Court in _**Pranab Kumar Mitra**_ v. _**State of W.B. and another**_ [ AIR 1959 SC 144] considered the question of abatement in revision and observed that where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu then notwithstanding the death of the convicted Crl.R.P.No.3986/2006 5 person pending the revision it has the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view. In view of the above discussion, it is clear that there is no provision for abatement of revision. 6. The evidence of PW1 shows that the accused had borrowed a sum of 85,000/- from him on 19.5.2004 and in₹ discharge of that debt, he issued Ext.P1 cheque. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant demanded the amount by giving a notice in writing. Exts.P2 and P3 are the dishonour memos of Canara Bank and State Bank of Travancore respectively. Ext.P4 is the lawyer notice. Ext.P5 is the postal receipt and Ext.P6 is the postal acknowledgment card. 7. According to Section 138 of the Negotiable Instruments Act, where any cheque drawn by a person on an Crl.R.P.No.3986/2006 6 account maintained by him with a bank for payment of any amount of money to another person from out of that account, for the discharge in whole or in part of any debt or liability, is returned by the bank, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with a bank, such person shall be deemed to have committed an offence under Section 138 of the Negotiable Instruments Act. This deemed provision is subject to the statutory condition that the cheque has to be presented within the statutory period in which it is drawn or within the period of its validity. Secondly, the payee or holder in due course of the cheque makes a demand for payment of such amount by giving a notice in writing to the drawer of the cheque and non-payment of due amount after receipt of notice by the drawer of the cheque. When cheque is dishonoured for the reasons stated u/s.138 of the N.I. Act, Crl.R.P.No.3986/2006 7 a presumption u/s.139 can be drawn in favour of the holder of the cheque. This presumption is a rebuttable presumption. 8. Apex Court in **Mandvi Co-operative Bank Ltd V. Nimesh B Thakore** (AIR 2010 SC 1402) held that a rebuttable presumption is created under Section 139 that cheque was issued by the drawer in discharge of any debt or liability owned by him to its holder. The same principle was followed in **Anil Hada V. Indian Acrylic Ltd** ( AIR 2000 SC 145). No rebuttal evidence has been adduced by the revision petitioner in this case. In the circumstances, the trial Court convicted the accused u/s.138 of the N.I. Act and sentenced thereunder. I do not find any illegality or irregularity in the finding of the trial Court. Appellate Court also rightly appreciated the evidence and convicted the accused. There is no merit in this revision petition and it is dismissed accordingly. ## **P.D. RAJAN, JUDGE.** acd