Dr. Kurian J. Manoopparambil v. K.K. Abraham and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 5TH DAY OF SEPTEMBER 2016/14TH BHADRA, 1938** **CRL.REV.PET.NO. 1294 OF 2006 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.136/2005 OF SESSIONS COURT, KOTTAYAM DATED 09.11.2005** **AGAINST THE JUDGMENT IN CC NO.831/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II(MOBILE),KOTTAYAM DATED 20.01.2005.** **--------------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **-----------------------------------------** **DR.KURIAN J.MANOOPPARAMBIL, MNANOOPPARANMBIL HOUSE, PARIPPU P.O. KOTTAYAM.** **BY ADVS.SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B.** **RESPONDENT(S)/COMPLAINANT AND NOT PARTY.: -----------------------------------------** **1. K.K.ABRHAM, KOOVAKKADA HOUSE, VAKATHANAM P.O. VAKATHANAM.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.GEORGE ZACHARIAH ERUTHICKEL R2 BY PUBLIC PROSECUTOR SRI.C.N. PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.1294 of 2006 ---------------------------------Dated this the 5[th] day of September, 2016** ## **O R D E R** This revision petition is filed by the accused against the judgment in Criminal Appeal No.136 of 2005 of the Additional Sessions Judge-Adhoc-I, Kottayam. He was the accused in C.C. No.831 of 2003 before the Judicial First Class Magistrate Court-II, (Mobile), Kottayam which was filed under Sec.138 of the Negotiable Instruments Act (for short, NI Act) by the complainant/1[st] respondent. The learned Magistrate convicted the accused under Sec.138 of the NI Act and sentenced him to undergo simple imprisonment for one year and compensation of Rs.1,25,000/- under Sec.357(3) Cr.P.C. Against that, the accused preferred the above Criminal Appeal before the Additional Sessions Judge, Adhoc-I, Kottayam, where the learned Additional Sessions Judge upheld the conviction and sentenced him to simple imprisonment for one month and compensation of Rs.1,25,000/- under Sec.357(3) Cr.P.C. Being aggrieved Crl. R.P. No.1294 of 2006 2 by that, the accused preferred this revision petition. 2. Complainant’s case in the trial court is that the accused borrowed a sum of Rs.1,25,000/- from him and in discharge of that debt, he issued Ext.P1 cheque. When the cheque was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant demanded the amount by giving a notice in writing. Even after notice, there was no payment. In the circumstance, he filed a complaint in the trial court. To prove the case, complainant was examined as PW1 and his documents were marked as Exts.P1 to P6. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. When the matter came up for hearing, the revision petitioner absent, counsel absent and there was no representation. In the circumstance, this court issued a notice to the revision petitioner through Circle Inspector, Kottyam who reported that the revision petitioner died and produced the death certificate issued Crl. R.P. No.1294 of 2006 3 by the Health Supervisor, Corporation of Cochin which is marked as Ext.C1. As per Ext.C1, the revision petitioner died on 04.11.2009. 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 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 Crl. R.P. No.1294 of 2006 4 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 person pending the revision it has the power to examine the whole question of the correctness, propriety or legality of Crl. R.P. No.1294 of 2006 5 the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view. 6. 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 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 interfering with the above power. 7. In this context, I have examined the oral and documentary evidence in this case. The oral evidence of Crl. R.P. No.1294 of 2006 6 PW1 shows that the accused borrowed a sum of Rs.1,25,000/- and in discharge of that debt, he issued Ext.P1 cheque. When the cheque was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext.P2 is the dishonor memo. Ext.P3 is the intimation, Ext.P4 is the lawyer's notice, Ext.P5 is the postal receipt and Ext.P6 is the postal acknowledgment card. Analyzing the evidence of PW1 and Exts.P1 to P6 it is clear that the cheque was dishonoured for the reason of funds insufficient. 8. According to Sec.139 of NI Act “It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability”. Therefore, the burden is upon the accused to rebut the presumption that Ext.P1 was issued not in discharge of a debt or liability. Here, the evidence of PW1 and Exts.P1 to P6 shows that the cheque was issued in discharge of a debt and a presumption can be drawn in favour of the holder of the cheque. This Crl. R.P. No.1294 of 2006 7 position was explained by the apex court in **Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore [AIR 2010 SC 1402]** and also in **Anil Hada v. Indian Acrylic Ltd. [AIR 2000 SC 145].** A close reading of the evidence shows that no evidence has been adduced by the accused/revision petitioner to rebut the presumption. The trial court rightly appreciated the evidence and convicted the accused. There is no illegality or irregularity in the findings of the courts below. There is no merit in this revision petition and it is dismissed accordingly. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS/06/09/2016 P.A. To Judge