K. VIJAYAMOHANAN NAIR v. ARUNKUMAR and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938** **Crl.Rev.Pet.No. 1566 of 2008 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.567/2004 of I ADDITONAL SESSIONS COURT,THIRUVANANTHAPURAM DATED 19-03-2008** **AGAINST THE JUDGMENT IN ST 1742/2003 of J.M.F.C.-II,ATTINGAL DATED 30-09-2004** **REVISION PETITIONER(S)/ACCUSED:** **------------------------------** **K.VIJAYAMOHANAN NAIR, AGED 54 YEARS,** **S/O.KUTTAN PILLAI, R.K.BHAVAN, (MANOOR HOUSE), KONNTHALLOOR, CHIRAYINKEEZHU.** **BY ADVS.SRI.T.C.GOVINDA SWAMY SMT.D.HEERA** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **1. ARUNKUMAR, S/O.BHUVANACHANDRAN NAIR, ARUNALAYAM, PULLAYIL, KILIMANOOR.** **2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R,R1 BY ADV. SRI.D.ROBINSON R1 BY ADV. SRI.M.DINESH BY SR. PUBLIC PROSECUTOR SRI.K.B. UDAYAKUMAR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.1566 of 2008 ---------------------------------------------Dated this the 31[st] day of October, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.567/2004 of First Additional Sessions Judge, Thiruvananthapuram. He was the accused in S.T. No.1742/2003 of Judicial First Class Magistrate Court-II, Attingal, 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 month and compensation of 28,000/-₹ u/s.357(3) Cr.P.C., in default simple imprisonment for two weeks. Against that, the accused preferred the above criminal appeal before First Additional Sessions Court, Thiruvananthapuram, where the learned Sessions Judge Crl.R.P. No.1566/2008 2 modified the sentence to imprisonment till rising of Court and compensation amount ordered by the trial Court was confirmed. Being aggrieved by that, the accused preferred this revision petition. 2. The complainant's case in the trial Court is that the accused availed a loan of 25,000/- from him on 12.6.2002₹ and in discharge of that debt, he issued Ext.P1 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 complainant was examined as PW1. His documents were marked as Exts.P1 to P6. 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 the revision petitioner is no more. In the circumstance, notice was issued Crl.R.P. No.1566/2008 3 to the revision petitioner through Circle Inspector, Chirayinkeezhu, who reported that the revision petitioner died on 5.4.2015. Death Certificate obtained from Attingal Municipality 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.” 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 Crl.R.P. No.1566/2008 4 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 the sentence of fine, which necessarily involves examining the Crl.R.P. No.1566/2008 5 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. Heard the learned counsel appearing for the revision petitioner and 1[st] respondent. 8. While adverting to his argument, I have examined Crl.R.P. No.1566/2008 6 whether the 1[st] respondent proved his allegation in the trial court and the accused committed any offence under Sec.138 NI Act. The complainant was examined as PW1. His evidence shows that in discharge of a debt of Rs.25,000/- (Rupees twenty five thousand only) revision petitioner issued Ext.P1 cheque. When Ext.P1 was presented for encashment it was dishonoured for the reason of funds insufficient. Ext.P2 is the dishonour memo, Ext.P3 is the debit memo. The complainant demanded the amount by giving a notice in writing. Ext.P4 is the notice of dishonour, Ext.P5 is the postal receipt and Ext.P6 is the acknowledgment. There was no payment after receipt of notice. When a cheque was dishonoured for the reason of funds insufficient, a presumption under Sec.139 can be drawn in favour of holder of the cheque. 9. According to Sec.139 of the NI Act it shall be presumed, unless the contrary is proved, that the holder of the cheque received the cheque of the nature referred to in Sec.138 for the discharge, in whole or in part of any debt or Crl.R.P. No.1566/2008 7 other liability. No circumstances are brought before the trial court to rebut the presumption. Apex Court in _**Mandvi Coopeartive Bank Ltd. v. Nimesh B. Thakore [AIR 2010 SC 1402 ], Anil Hada v. Indian Acrylic Ltd. [AIR 2000 SC 145]**_ and in **Narayana Menon v. State of Kerala 2006 (3) KLT 404 (SC)** held that the presumption is rebuttable. It is the responsibility of the accused to rebut the presumption under Sec.139 NI Act. In the absence of such rebuttal evidence the trial court convicted the accused and sentenced there under. The Additional Sessions Judge upheld the finding. I find no 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