G. Nesaiyan v. K.A. George 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. 1541 of 2007 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.587/2006 of SESSIONS COURT, ALAPPUZHA DATED 26-02-2007** **AGAINST THE JUDGMENT IN CC 45/2002 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II(MOBILE),ALAPPUZHA DATED 20-10-2006** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **G.NESAIAN, S/O. GNANAMONY, KOLLAKUDIVILAI, MEKKANANDAPURAM P.O., KANYAKUMARI DISTRICT, TAMIL NADU.** **BY ADV. SRI.K.A.SALIL NARAYANAN** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE:** **----------------------------------------------** **1. K.A.GEORGE, S/O. ABRAHAM, KIDANGATTU HOUSE, CANAL WARD, ALAPPUZHA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. D. CHANDRASENAN** **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.1541 of 2007 ---------------------------------------------Dated this the 25[th] day of October, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.587/2006 of Sessions Judge, Alappuzha. He was accused in C.C. No.45/2002 of Judicial First Class Magistrate Court-II, Alappuzha, 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 and compensation of 3 lakhs u/s.357(3) Cr.P.C., in default simple₹ imprisonment for two months. Against that, he preferred the above criminal appeal before Sessions Court, Alappuzha, where the learned Sessions Judge modified the sentence to simple imprisonment for six months and compensation awarded by Crl.R.P. No.1541/2007 2 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 was the supplier of banana. In the year 2001, during Onam vacation, the complainant needed large quantity of banana for his business at Alappuzha. For that, he advanced 3 lakhs to the accused. But, the accused failed₹ to supply banana as per the agreement. When he demanded the amount, accused 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, but there was no payment. In the circumstances, he filed the above complaint. To prove the allegation, the complainant was examined as PW1 and his documents were marked as Exts.P1 to P8. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 to DW3 and marked Exts.D1 to D3. The learned Crl.R.P. No.1541/2007 3 Magistrate convicted the accused. 3. When this revision petition came up for hearing, The learned counsel, Adv. Salil Narayanan appearing for the revision petitioner submitted that he has no information about the revision petitioner. Hence, this Court issued a notice to the revision petitioner through Superintendent of Police, Kanyakumari, who submitted a report stating that the revision petitioner died on 11.02.2015 at Bethesda Hospital, Nagarcoil and produced a Death Certificate issued from Nagercoil Municipality, which is marked as Ext.C1. 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 Crl.R.P. No.1541/2007 4 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 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 Crl.R.P. No.1541/2007 5 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. In view of the above discussion, it is clear that there is no provision for abatement of revision. 6. In this context, I have examined whether there is any illegality or irregularity committed by the trial Court or the appellate Court while disposing this case. In the trial Court, PW1 was examined to prove the case. His evidence shows that Ext.P1 was issued in discharge of a debt. When it was presented for encashment, it was dishonoured for the reason of funds insufficinet. Ext.P2 is the dishonour memo. Ext.P3 is the intimation. Ext.P4 is the postal envelop. Ext.P5 is the copy of lawyer notice. Ext.P6 is the postal receipt. Crl.R.P. No.1541/2007 6 Ext.P7 is the acknowledgment card. Ext.P8 is the reply notice. PW2 was also examined in this case. The evidence of PW1 and PW2 and Exts.P1 to P8 shows that when Ext.P1 was presented for encashment, it was dishonoured for the reason of funds insufficient. 7. 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 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 Crl.R.P. No.1541/2007 7 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 was dishonoured for the reasons stated u/s.138 of the N.I. Act, a presumption u/s.139 can be drawn in favour of the holder of the cheque. This presumption is a rebuttable presumption. 8. Section 139 of the N.I. Act reads as follows. “139. Presumption in favour of the holder - 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”. 9. 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 Crl.R.P. No.1541/2007 8 liability owned by him to its holder. The same principle was followed in **Anil Hada V. Indian Acrylic Ltd** ( AIR 2000 SC 145). The revision petitioner examined DW1 to Dw3 and marked Exts.D1 to D3. The evidence of DW1 shows that Ext.D2 was issued by PW2, when he supplied banana to him. PW2 disowns the claim in Ext.D2. He categorically stated that he had not written in his handwriting. 10. Apex Court in **Narayana Menon** v. **State of Kerala** [2006(3) KLT 404 (SC)] held as follows: “In _Hiten P. Dalal v. Bratindranath Banerjee_ ((2001) 6 SCC 16), a 3-Judge Bench of this Court held that although by reason of Ss.138 and 139 of the Act, the presumption of law as distinguished from presumption of fact is drawn, the court has no other option but to draw the same in every case where the factual basis of raising the presumption is established. Pal. J. speaking for a 3-Judge Bench, however, opined: 'Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact. Crl.R.P. No.1541/2007 9 In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, 'after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the “prudent man”. Therefore, the learned trial Judge considered the evidence of DW1 to DW3 and Exts.D1 to D3 and opined that the revision petitioner failed to rebut the presumption u/s.139 of the N.I. Act and therefore, the trial Court convicted him u/s.138 of the N.I. Act . I do not find any illegality or irregularity in the finding of the courts below. There is no merit in this revision petition and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd