ANANDA RAJAN v. STATE OF KERALA and SAMUEL THOMAS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938** **Crl.Rev.Pet.No. 1802 of 2007 ( ) --------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.462/2005 of ADDITIONAL SESSIONS COURT-I,MAVELIKKARA DATED 27-09-2006** **AGAINST THEJUDGMENT IN CC 364/2004 of J.M.F.C., KAYAMKULAM DATED 29-06-2005** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------ANANDA RAJAN, UPPUKARAN PARAMBIL, PONNARAMTHOTTAM, MAVELIKKARA.** **BY ADVS.SRI.BASANT BALAJI SRI.R.GOPAN** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **2. SAMUEL THOMAS,** **KUNAMKULANGARA JENISUS, PATHIYOOR KIZHAKKUM MURI, PATHIYOOR VILLAGE.** **R,R.2 BY ADV. SRI.S.MOHANAN R,R2 BY ADV. SRI.R.REJI R1 BY SR. PUBLIC PROSECUTOR SRI. C.N. PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.1802 of 2007 ---------------------------------------------Dated this the 14[th] day of November, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.462/2005 of Additional Sessions Judge-I, Mavelikkara. He was the accused in C.C. No.364/2004 of Judicial First Class Magistrate Court, Kayamkulam, 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 one year u/s.138 of the N.I. Act and compensation of ₹3,02,265/- to the complainant u/s.357(3) Cr.P.C., in default simple imprisonment for two months. Against that, he preferred the above criminal appeal before Additional Sessions Judge-I, Mavelikkara, where learned Sessions Judge modified Crl.R.P. No.1802/2007 2 the sentence to simple imprisonment for three months and the compensation amount 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 was that the accused borrowed a sum of 1,80,000/- from him.₹ In discharge of that debt, the accused issued Ext.P1 cheque for 3,02, 265/-. When it was presented for encashment,₹ it was dishonoured for the reason of 'account closed'. The complainant demanded the amount by giving a notice in writing. But, there was no payment. Hence, the complaint. To prove the case, the complainant was examined as PW1 and his documents were marked as Exts.P1 to P7. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. Exts.D1 to D4 were marked from the side of the revision petitioner. The learned Magistrate convicted the accused. 3. When the matter came up for hearing on Crl.R.P. No.1802/2007 3 7.10.2016, this Court directed to issue notice to the revision petitioner through Circle Inspector, Mavelikkara and to the first respondent through Circle Inspector, Kayamkulam. Subsequently, Circle Inspector, Kayamkulam reported that the revision petitioner died on 30.6.2007, which was marked as Ext.C1. Sub Inspector, Mavelikkara reported that the 1[st] respondent died on 02.09.2015 and produced Death Certificate, which is marked as Ext.C2. 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, Crl.R.P. No.1802/2007 4 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 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**_ Crl.R.P. No.1802/2007 5 _**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 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. 6. According to Section 138 of the Negotiable Instruments Act, where any cheque drawn by a person on an 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 Crl.R.P. No.1802/2007 6 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. The evidence of PW1 shows that Ext.P1 was dishonoured ofr the reason of funds insufficient. Exts.P2 and P3 are the dishonour memos. Ext.P4 is the postal receipt. Ext.P5 is the postal acknowledgment card. Ext.P6 is the copy of lawyer notice. Ext.P7 is the reply notice. When cheque is dishonoured for the reason stated u/s.138 of the N.I. Act, a statutory presumption u/s.139 can be Crl.R.P. No.1802/2007 7 drawn in favour of the holder of the cheque. 7. It is the primary responsibility of the accused to rebut the presumption by adducing cogent and convincing evidence. The principle drawing presumptions has been explained by the Apex Court in _**Hiten P. Dalal**_ v. _**Bratindranath Banerjee**_ (AIR 2001 SC 3879], _**Beena**_ v. v. _**Muniappan**_ (AIR 2001 SC 2995) and _**Narayana Menon State of Kerala**_ [2006 (3) KLT 404 (SC)]. Even though the revision petitioner produced Exts.D1 to D4 in the trial Court, the Courts below observed that, that itself is not sufficient to rebut the presumption and convicted the accused. Exts.D1 to D4 series are documents connected with coconut transaction between the revision petitioner and the complainant. As per Ext.D1, the balance amount on 13.7.2003 is 22,612/-. Therefore, the claim of value₹ of coconut 40,937/- is false. It is clear that Ext.P1 cheque₹ was issued after settlement of the entire transaction. 8. Once execution of the cheque is admitted, the Crl.R.P. No.1802/2007 8 presumption under section 118(a) and 139 of the Act would arise that it is supported by a consideration. These presumptions are rebuttable and the accused can prove the non-existence of a consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon the failure to prove would disentitle him to the grant of relief on the basis of the one negotibale instrument. Supreme Court in _**Krishna Janardhan Bhat**_ v. _**Dattatrayo G. Hegde**_ [(2008) 141 Comp Case 665 (SC)] held that Section 138 of the Act has three ingredients, viz:- (i) that there was a legally enforceable debt; (ii) that the cheque was drawn from the account of banker for discharge, in whole or in part, of any debt or other liability, which presupposes a legally enforceable debt, and (iii) that the cheque so issued Crl.R.P. No.1802/2007 9 had been returned due to insufficiency of funds. There is no quarrel over the proposition that section 139 of the Act raises a presumption in regard to the second ingredient only. Existence of legally recoverable debt is not a mater of presumption. It merely raises presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or other liability. Also, once execution of the cheque is admitted or proved the presumption under section 118(a) and 139 of the Act would arise that it is supported by consideration. 9. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a subordinate court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Crl.R.P. No.1802/2007 10 Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interpreting with the above power. There is no denial of execution of Ext.P1, in the circumstances, the trial Court and the appellate Court had drawn a statutory presumption u/s.139 of the N.I. Act. I do not find any illegality in convicting the accused u/s.138 of the N.I. Act. Since revision petitioner and second respondent are no more, this revision petition is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd