Criminal Revision Petition No. 89 of 2006 (Raghavan Nair v. Shaji George and State of Kerala)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 89 of 2006 ---------------------------CRA.524/2003 of ADDL.SESSIONS COURT (SPL.CAURT), KOTTAYAM CC.158/2001 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------- RAGHAVAN NAIR, AGED 80 YEARS, MANAGING PARTNER, M/S. SANTHI RUBBER COMPANY MONIPPALLY P.O, KOTTAYAM. BY ADV. SRI.JAMES KURIAN RESPONDENT/COMPLAINANT -------------------------------------------- 1. SHAJI GEORGE, PROPRIETOR ST.JUDE RUBBERS, KURAVILANGADU. ## 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR THOMAS JOHN AMBOOKAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## CRRP. 89/2006 ## ORDER ON C.M.A. 288/2006 IN CRRP 89/2006 DISMISSED SD/ M.N. KRISHNAN, JUDGE 16.12.2008 /TRUE COPY/ P.A. TO JUDGE ## **M.N. KRISHNAN, J** ## **----------------------CRL.R.P.No. 89 OF 2006** ## **---------------------------------** Dated this the 16[th] day of December, 2008 ## **ORDER** This revision is preferred against the judgment in Crl. Appeal No. 524/2003 of the Addl. Sessions (Spl.) Kottayam. It was an appeal preferred against the conviction and sentence passed in C.C. 158/2001 of the Judicial First Class Magistrate, Pala. The Judicial First Class Magistrate, Pala found the accused guilty under Section138 of the Negotiable Instruments Act and sentenced him to undergo Simple Imprisonment for 15 days and to pay an amount of Rs. 20,000/- as compensation under Section 357(3) and in default to undergo Simple Imprisonment for one month. In appeal the appellate court modified the sentence to one day that is till the rising of the court and and to pay a compensation of Rs. 20,000/and in default to undergo Simple Imprisonment for 15 days. Aggrieved by the said decision the revision is preferred by the accused in the case. 2. The learned counsel for the revision petitioner submits that the revision petitioner is dead and his legal representatives are not interested to come on record. So the basic question to be Crl.R.P.No. 89/2006 -2- considered is whether the case will abate on account of the death of the revision petitioner. It is true that under Section 394 of the Criminal Procedure Code every appeal under Section 377 or 378 shall finally abate on the death of the accused and under Section 394(2) every other appeal under the status, (except an appeal from a sentence of fine shall finally await on the death of the appellants). There is no specific provision with respect to criminal revision. But it has been considered by the apex court in the decision reported in _**Pranab Kumar Mitra v. State of West Bengal and another [AIR 1959 144]**_ . The apex Court held that “where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu then not withstanding 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”. So when a revision petition is entertained it can be proceeded with in appropriate cases. Further it has to be remembered that here is Crl.R.P.No. 89/2006 -3- a case where the revision petitioner has been sentenced to undergo Simple Imprisonment for a period of one day that is till the rising of the court and pay a compensation of Rs. 20,000/- under Section 357(3) and in default to undergo Simple Imprisonment for a period of 15 days. The mode of recovery of compensation under Section 357(3) is as envisaged for the recovery of the amount of fine under the provisions of the Criminal Procedure Code. So it can be safely be said that there is a conviction whereby there is a sentence of imprisonment and also for payment of money in the form of a compensation which can be realised by resorting to the method contemplated under the Criminal Procedure Code for recovery of fine. So even if extended principles of 394 is applied there cannot a total abatement of the Criminal Revision Petition. The Karnataka High Court in the decision reported in _**P.R. Anjanappa v. M/s. Yurej Agencies Pvt. Ltd. [2004 Crl. L.J 2565]**_ held that: “where ever there is sentence of substantive nature as well as sentence of fine is imposed, it cannot be termed as composite sentence simpliciter so as to pronounce the abatement of entire appeal by virtue of death of the appellant”. So this decision also support to the view that there cannot be a Crl.R.P.No. 89/2006 -4- total abatement of the case. But it has to be held that the sentence of imprisonment shall not have any further operation as it has become unenforceable. 3. Now let me examine the case on merits. With the help of the learned counsel, who had filed the Criminal Revision Petition, I had considered the matter. It is a case where a complaint has been filed on the ground that this deceased revision petitioner had business transactions with the accused and for the amount due he had issued a cheque which when presented for encashment returned with an endorsement of insufficiency of funds. In spite of notice, the amount was not paid. Hence action was initiated. The contention of the accused was to the effect that he had not issued any cheque in favour of the complainant. The Ext. P1 is the disputed cheque and it is signed by the accused as the Managing Partner of the Company. In spite of receiving a notice he did not send any reply. The courts below found that the evidence of PW1 is sufficient to prove the execution of the cheque and that it is issued towards the discharge of the liability. On satisfaction of the same the courts had drawn the necessary presumption under 118 & 139 of Negotiable Instruments Act and also found that it is not rebutted. Crl.R.P.No. 89/2006 -5- Therefore I cannot find any mistake committed by the courts below in finding that the accused was guilty under Section 138 of the Negotiable Instruments Act. 4. The accused was aged 78 years at the time of the first judgment and in appeal the appellate court took a lenient view by reducing the sentence of imprisonment to one day that is till the rising of the court and retained the payment of compensation of Rs. 20,000/- that is actually double the amount of cheque. I feel the courts below were little harsh on ordering payment of the amount that is twice the cheque amount though permitted by law. I feel it can be reduced to Rs. 13,000/- and can be ordered to be paid under Section 357(3) from the assets of the deceased in the hands of the legal representatives. Therefore the Criminal Revision Petition is disposed of as follows: 1. The conviction under section 138 of Negotiable Instruments Act is sustained. 2. The trial court is at liberty to proceed for realisation of an amount of Rs. 13,000/- as compensation under Section 357 - (3) of the Criminal Procedure Code from the assets which are Crl.R.P.No. 89/2006 -6- in the possession of the legal representatives of the deceased revision petitioner and disburse it to the complainant in accordance with law. The Crl. Revision Petition is disposed of accordingly. **M.N. KRISHNAN,JUDGE** vkm