Jose, S/o Raphael v. Shajhan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 13TH DAY OF OCTOBER 2016/21ST ASWINA, 1938** **Crl.Rev.Pet.No. 1538 of 2007 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL 64/2000 of ADDITIONAL DISTRICT & SESSIONS FAST TRACK COURT-1, THIRUVANANTHAPURAM DATED 02-06-2006** **AGAINST THE JUDGMENT IN CC 861/1996 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,ATTINGAL DATED 21-01-2000** **REVISION PETITIONER(S)/APPELLANT/ACCUSED.:** **----------------------------------------JOSE, S/O.RAPHEL,** **CHEERAMBAN HOUSE, VEELOOR VILLAGE,, THALAPPILLY TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.MADHU RADHAKRISHNAN** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT.:** **--------------------------------------** **1. SHAJHAN, S/O.HAJU MUHAMMED,** **S.M.SHAMIR NIVAS, KADINAMKULAM MURI, KADINAKULAM VILLAGE, (FROM SHEEJA MANZIL, MARKET ROAD, MANACATTUVILAKOM MURI, PALLIPPURAM VILLAGE.** **2. STATE OF KERALA, REPRESENTED BY ADDL.PUBLIC PROSECUTOR, PAZHAYANNUR,, THRISSUR DIST.** **R,R1 BY ADV. SRI.N.R.SURESH KUMAR BY SR.PUBLIC PROSECUTOR SRI. C.N. PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.1538 of 2007 ---------------------------------------------Dated this the 13[th] day of October, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.64/2000 of Additional District & Sessions Judge, Fast Track Court-I, Thiruvananthapuram. He was the accused in C.C. No.861/1996 of Judicial First Class Magistrate Court-I, Attingal, which was filed by the 1[st] respondent u/s.138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). After trial, the learned Magistrate convicted the accused u/s.138 of the N.I. Act and sentenced to imprisonment for one year. Against that, he preferred the above criminal appeal before Additional Sessions Judge, Fast Track Court-I, Thiruvananthapuram, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. Crl.R.P. No.1538/2007 2 2. The complainant's case in the trial Court was that the accused borrowed a sum of 40,000/- from him and in₹ discharge of that debt, he issued Ext.P2 cheque. When it 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. Hence, the complaint. To prove the offence, the power of attorney holder was examined as PW1. His documents were marked as Exts.P1 to P7. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and DW2 and marked Exts.D1 and D1(a). 3. When the matter came up for hearing, the learned counsel for the revision petitioner submitted that the revision petitioner is no more. In the circumstance, as per the direction of this Court, Sub Inspector of Police, Erumapetty produced the Death certificate of the revision petitioner issued by the Registrar of Birth and Death, Velur Grama Crl.R.P. No.1538/2007 3 Panchayat, which is marked as Ext.C1. As per Ext.C1, the revision petitioner died on 15/06/2015. 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 appellant apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. According to Crl.R.P. No.1538/2007 4 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 the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view. 6. In this context, I have examined whether there is Crl.R.P. No.1538/2007 5 any illegality or irregularity in the finding of the court below. 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 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 Crl.R.P. No.1538/2007 6 receipt of notice by the drawer of the cheque. The evidence of PW1 shows that Ext.P2 cheque was issued in discharge of a debt. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext.P3 is the dishonour memo. The complainant 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. Ext.P7 is the reply notice. When Ext.P2 cheque was dishonoured for the reasons stated under S.138 of the N.I. Act a presumption under S.139 of the N.I.Act can be drawn in favour of the holder of the cheque. 7. When complainant proves the existence of a legally enforceable debt, the presumption under Section 139 of the Negotiable Instruments Act starts operating and burden shifts to the accused. Section 139 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”. Crl.R.P. No.1538/2007 7 Revision petitioner examined DW1 and DW2 and marked Exts.D1 and D1(a). DW1 is the S.I. of Police, Kunnamkulam, who deposed that he produced FIR 477/1998 and the revision petitioner was the complainant in that case. DW2 Sub Inspector, Mangalapuram Police station deposed that Andoorkonam is within the limits of Mangalapuram police station. Cases of the Mangalapuram Police station are filed before Judicial First Class Magistrate Court-II, Attingal. Even though DW1 and Dw2 were examined, that itself is not sufficient to rebut the presumption u/s.139 of the N.I. Act. A three Judge bench of the Apex Court in _**Rangappa**_ V. _**Sri Mohan**_ (2010(11) SCC 441) held as follows:- “The presumption mandated by Section 139 includes a presumption and there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or lliability can be contested. However, there can be no doubt that there is an initial presumption which favours the respondent complainant”. ## Therefore, the trial Court rightly appreciated the rebuttal Crl.R.P. No.1538/2007 8 evidence and concluded that presumption can be drawn in favour of the holder of the cheque and convicted the revision petitioner. I do not find any illegality in the findings of the trial Court. There is no merit in this revision and accordingly, it is dismissed. **P.D. RAJAN, JUDGE.** acd