Sidharthan v. State of Kerala and Sandeep

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938** **Crl.Rev.Pet.No. 3536 of 2005 ( ) ---------------------------------** **CRA 324/2004 of ADDITIONAL SESSIONS COURT, THRISSUR** **CC 94/2002 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT, KODUNGALLUR** **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **SIDHARTHAN, AGED 38 YEARS, S/O.NARAYANAN, THEKKUMTHOTTATHIIL, AZHIKODE, KODUNGALLUR.** **BY ADVS.SRI.AMJAD ALI SRI.B.PREMOD** **RESPONDENTS/COMPLAINANT/RESPONDENTS:** **------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **2. SANDEEP,** **S/O.CHANDRAN, KALATHINGAL HOUSE, MOOTHAKUNNAM, PARAVUR.** ## **R1 BY SR.PUBLIC PROSECUTOR SRI.C.M.PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DSV/11/1/17** ## **P.D. RAJAN, J. ---------------------Crl. Rev.Pet. No.3536 of 2005 ---------------------------------Dated this the 28[th] day of November, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.324 of 2004 of the Sessions Court, Thrissur. He was the accused in C.C. No.94 of 2002 of the Judicial First Class Magistrate Court, Kodungallur 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 15 days and compensation of Rs.45,000/- 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 Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The complainant's case in the trial court was that the accused borrowed a sum of Rs.40,000/- and in discharge of that debt, he issued Ext.P1 cheque. When Ext.P1 was presented for encashment, it was dishonoured Crl. Rev.Pet. No.3536 of 2005 2 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 P6. 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. In the circumstance, this Court directed the Circle Inspector, Kodungallur to produce the revision petitioner. As per the direction, the Assistant Sub Inspector, Kodungallur reported that revision petitioner is no more. Sub Inspector, Kodungallur produced the death certificate of the revision petitioner, which was marked as Ext.C1. As per Ext.C1, the revision petitioner died on 18.09.2016. 4. According to Section 394 Cr.P.C., every appeal under Section 377 or Section 378 shall finally ## Crl. Rev.Pet. No.3536 of 2005 3 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 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 Crl. Rev.Pet. No.3536 of 2005 4 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. 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 Crl. Rev.Pet. No.3536 of 2005 5 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 nonpayment of due amount after receipt of notice by the drawer of the cheque. In this backdrop, I have examined the evidence of PW1 which shows that Ext.P1 was issued by the accused in discharge of a debt of Rs.40,000/-. The Crl. Rev.Pet. No.3536 of 2005 6 accused borrowed the money with an agreement to repay immediately. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext.P2 is the dishonour memo. Complainant demanded the money by giving a notice in writing. Ext.P4 is the notice. Ext.P5 is the postal receipt. Ext.P6 is the acknowledgment Card. 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. Therefore, a presumption can be drawn under Sec.139 of the NI Act. 7. Sec.139 of the NI Act reads as follows: Presumption in favour of 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. 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 Crl. Rev.Pet. No.3536 of 2005 7 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 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 Crl. Rev.Pet. No.3536 of 2005 8 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. 8. Apex court in **Rangappa v. Sri. Mohan [2010 (11) SCC 441]** held that what courts have to consider is whether the ingredients of the offence enumerated in S.138 have been met and if so, whether accused was able to rebut the statutory presumption contemplated under Sec.139 of the NI Act. Another decision in **M.S. Narayana Menon Alias Mani v. State of Kerala and Another [2006 (6) SCC 39** ] it was held that the presumption is rebuttable. In order to rebut the presumption, the accused has to adduce cogent and convincing evidence. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record, but also by reference to the Crl. Rev.Pet. No.3536 of 2005 9 circumstances upon which he relies. In this case, no evidence has been adduced by the accused/revision petitioner in the trial court to rebut the presumption. In the circumstance, the trial court rightly convicted the accused. I find no illegality or irregularity in the above finding. There is no merit in this revision petition and it is dismissed accordingly. NS/29.11.2016 Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge