G.P. Sajith v. M. ShyLaja and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938** **Crl.Rev.Pet.No. 2014 of 2006 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.283/2006 of ADDITIONAL DISTRICT& SESSIONS FAST TRACK COURT (ADHOC)NO.1, THIRUVANANTHAPURAM DATED 10-03-2006** **AGAINST THE JUDGMENT IN ST 154/1994 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE,THIRUVANANTHAPURAM DATED 21-06-2000** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **G.P. SAJITH, PROPRIETOR, GPS AGENCIES, GURUVIHAR, PATTOM P.O., THIRUVANANTHAPURAM.** **BY ADVS.SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE::** **---------------------------------------------** **1. M. SHYLAJA, MANI BHAVAN III, KESTON ROAD, KOWDIAR P.O., THIRUVANANTHAPURAM.** **2. STATE OF KERALA, REPRESENTED 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 18-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.2014 of 2006 ---------------------------------------------Dated this the 18[th] day of August, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl. Appeal No.283/2006 of Additional District and Sessions Judge, Fast Track Court (Adhoc) I, Thiruvananthapuram. He was the accused in S.T. No.154/1994 of Additional Chief Judicial Magistrate, Thiruvananthapuram, which was filed u/s.138 of the Negotiable Instruments Act. The learned Magistrate convicted the accused u/s.138 of the Negotiable Instruments Act and sentenced to fine of 50,000/-,₹ in default simple imprisonment for one month. Being aggrieved by that, the accused preferred Crl. Appeal No.283/2006 before Additional District and Sessions Judge, Fast Track Court (Adhoc) I, Thiruvananthapuram, where the learned Magistrate dismissed the appeal. Hence, this revision Crl.R.P.No.2014/2006 2 petition. 2. The complainant's case in the trial Court was that the accused while working as Proprietor of GPS Agencies, issued cheque for 1,75,000/- drawn on Andhra₹ Bank, Thiruvananthapuram in discharge of a debt. When it was presented for encashment, it was dishonoured for the reason of 'exceeds arrangement'. The complainant demanded the amount by giving a notice in writing. Even after receipt of notice, there was no response from the side of the revision petitioner. In the circumstances, the above case was filed in the trial Court. During trial, the prosecution examined PW1 and PW2 and marked Exts.P1 to P7 as documentary evidence. The 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 learned counsel for the revision petitioner submitted that Crl.R.P.No.2014/2006 3 the revision petitioner is no more. In the circumstances, this Court issued notice to the revision petitioner through Circle Inspector, Museum Police Station, Thiruvananthapuram. On 4.8.2016, C.I. reported that the revision petitioner died on 4.2.2012 and produced Death Certificate of the revision petitioner issued from the Corporation of Thiruvananthapuram, 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 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.” Crl.R.P.No.2014/2006 4 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 observed that where the High Court thinks it fit and proper Crl.R.P.No.2014/2006 5 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. Based upon the argument, I have examined the oral evidence of PW1 and PW2. PW1 is the complainant. Her 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 insufficient. Exts.P2 and P3 are the memo received from the bank. She demanded the amount by giving a notice in writing. Ext.P4 is the copy of the lawyer notice. Ext.P5 is the postal receipt. Ext.P6 is the acknowledgment card. PW2 deposed that when Ext.P1 was presented for encashment, there was insufficient fund in the account. Ext.P7 is the certified copy Crl.R.P.No.2014/2006 6 of ledger. Analysing the evidence of PW1 and PW2 and Exts.P1 to P7, it is clear that when cheque was presented for encashment, it was dishonoured for the reason staed under Section 138 of the N.I.Act. When Ext.P1 was dishonoured for the reason of funds insufficient, a presumption provided under Section 139 of N.I.Act can be drawn in favour of the first respondent. 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 in the trial Court. Therefore the learned Magistrate drawn a presumption that the cheque was issued in discharge of a liability and convicted the accused. The appellate Court confirmed the finding of the trial Court. I do not find any illegality or Crl.R.P.No.2014/2006 7 irregularity in the finding of the Court below. Accordingly, the revision petition is dismissed. **P.D. RAJAN, JUDGE.** acd