Mathai Joshua v. State of Kerala and P. N. Sadasivan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938** **CRL.REV.PET.NO. 2550 OF 2004 (A) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.114/1999 OF ADDITIONAL SESSIONS JUDGE (ADHOC), FAST TRACK-II, PATHANAMTHITTA DATED 12-07-2004** **AGAINST THE JUDGMENT IN CC NO.444/1997 OF CHIEF JUDICIAL MAGISTRATE, PATHANAMTHITTA DATED 30-07-1999** **----------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **MATHAI JOSHUA, N.P. NAGAR, II/25, MUTHOOR P.O., THIRUVALLA P.O., PATHANAMTHITTA.** ## **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT::** **---------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. P.N. SADASIVAN NAIR,** **PADINJATTETHIL HOUSE, PULLAD, KOLPURAM VILLAGE.** **R1 BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN R2 BY ADV. SRI.MVS.NAMBOOTHIRY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **---------------------Crl. Rev.Pet. No.2550 of 2004 ---------------------------------Dated this the 21[st] day of November, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.114 of 1999 of the Additional Sessions Judge, Adhoc, Fast Track-II, Pathanamthitta. He was the accused in C.C. No.444 of 1997 of the Chief Judicial Magistrate, Pathanamthitta which was filed under Sec.138 of the Negotiable Instruments Act ('NI Act' for short). The learned Magistrate convicted the accused and sentenced him to undergo simple imprisonment for nine months under Sec.138 of the NI Act and fine of Rs.2,10,000/under Sec.357(3) Cr.P.C. in default, simple imprisonment for three months. Against that, the accused preferred the above Criminal Appeal, where the learned Additional Sessions Judge modified the sentence to fine of Rs.2,10,000/- in default, simple imprisonment for six months. Being aggrieved by that, the accused preferred this revision petition. Crl. Rev.Pet. No.2550 of 2004 2 2. The complainant's case in the trial court was that the revision petitioner/accused borrowed a sum of Rs.2,00,000/- (Rupees two lakhs only) from him and in discharge of that debt, he issued Ext.P1 cheque drawn on Catholic Syrian Bank Ltd., Thiruvalla branch. When Ext.P1 was presented for encashment it was dishonoured for the reasons 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 complainant was examined as PW1 in the trial court and his documents were marked as Exts.P1 to P5. The Manager, Catholic Syrian Bank Ltd. was examined as PW2. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Magistrate convicted the accused. 3. When the matter came up for hearing there was no representation for the revision petitioner. In the circumstance, this Court directed the Sub Inspector, Thiruvalla to produce the revision petitioner. As per the Crl. Rev.Pet. No.2550 of 2004 3 direction, Sub Inspector, Thiruvalla reported that revision petitioner is no more and he produce the death certificate obtained from the Corporation of Chennai, which is marked as Exts.C1. As per Ext.C1 revision petitioner died on 27.06.2010. 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 but there is no such abatement is possible in the case of revision. 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 Crl. Rev.Pet. No.2550 of 2004 4 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 to entertain an application in revision or calls for the record suo motu then Crl. Rev.Pet. No.2550 of 2004 5 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. 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 ## Crl. Rev.Pet. No.2550 of 2004 6 ## a ground for interfering with the above power. ## 7. Sec.138 of the NI Act reads as follows: Dishonour of cheque for insufficiency, etc., of funds in the account:- Where any cheque drawn by a person an an account maintained by him with a banker 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 other liability, is returned by the bank unpaid, 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period f six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the Crl. Rev.Pet. No.2550 of 2004 7 cheque, within fifteen days of the receipt of the said notice. 8. The Section 138 of the Negotiable Instruments Act starts with a deemed provision. It says that 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- Crl. Rev.Pet. No.2550 of 2004 8 payment of due amount after receipt of notice by the drawer of the cheque. In this context, I have examined the evidence of PW1 and PW2. PW1 deposed that when Ext.P1 cheque was presented for encashment it was dishonoured for the reason of funds insufficient. PW2, the Bank Manager deposed that funds was insufficient to honour the cheque. Ext.P2 is the dishonour memo, Ext.P3 is the lawyer notice, Ext.P4 is the acknowledgment card and Ext.P5 is the postal receipt. When cheque is dishonoured for the reason 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. 9. The statutory compliance as provided under Sec.138 of the NI Act was properly complied by the revision petitioner. When Ext.P2 cheque was dishonoured for the reason of funds insufficient, statutory presumption under Sec.139 of the NI Act can be drawn in favour of the holder of the cheque. According to Sec.139 of the NI Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature Crl. Rev.Pet. No.2550 of 2004 9 referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. Once execution of the cheque is admitted, the presumption under section 118(a) and 139 of the Act would arise that it is supported by a consideration. These presumptions are rebuttable and the accused can prove the non-existence of a consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon the failure to prove would disentitle him to the grant of relief on the basis of the one negotibale instrument. Supreme Court in **Krishna Janardhan Bhat** v. **Dattatrayo G. Hegde** [(2008) 141 Comp Case 665 (SC)] held that Section 138 of the Act has three ingredients, viz:- (i) that there was a legally enforceable debt; (ii) that the cheque was drawn from the account of banker for discharge, in whole or in part, of any debt or other liability, which presupposes a Crl. Rev.Pet. No.2550 of 2004 10 legally enforceable debt, and (iii) that the cheque so issued had been returned due to insufficiency of funds. There is no quarrel over the proposition that section 139 of the Act raises a presumption in regard to the second ingredient only. Existence of legally recoverable debt is not a mater of presumption. It merely raises presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or other liability. Also, once execution of the cheque is admitted or proved the presumption under section 118(a) and 139 of the Act would arise that it is supported by consideration. 10. Apex Court in **Beena v. Muniappan (AIR 2001 SC 2995)** and **M.S. Narayana Menon Alias Mani v. State of Kerala and Another [2006 (6) SCC 39** ] held that the presumption is rebuttable and in order to rebut the presumption, the accused has to adduce cogent and convincing evidence. The standard of proof evidently is preponderance of probabilities, which can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. In Crl. Rev.Pet. No.2550 of 2004 11 this case, no evidence has been adduced by the accused in the trial court to rebut the presumption. In the circumstance, the trial court rightly convicted the accused. I find no illegality in the above finding. There is no merit in this revision petition and it is dismissed accordingly. The amount of Rs.60,000/- (Rupees sixty thousand only) deposited by the revision petitioner in the trial court shall be disbursed to the complainant/2[nd] respondent. ## Sd/- **P.D. RAJAN, JUDGE** NS/23.11.2016 / True Copy / P.A. To Judge