Sreevalappil Noorudeen v. State of Kerala and Seeravalappil Mariyumma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938** **Crl.Rev.Pet.No. 1354 of 2007 ( ) --------------------------------AGAINST THE JUDGMENT IN Crl.APPEAL NO. 587/2002 of ADDITIONAL SESSIONS COURT (ADHOC)-III, THALASSERY DATED 15-12-2006** **AGAINST THE JUDGMENT IN CC 222/1999 of JUDICIAL MAGISTRATE OF FIRST CLASS,PAYYANNUR DATED 22-10-2002** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------SREEVALAPPIL NOORUDEEN, S/O.ABDULLA, PALLIKANDY HOUSE, MUTTORM, MADAI AMSOM,, DESOM P.O., VENGARA.** **BY ADVS.SRI.S.M.PREM SMT.K.P.SANTHI** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE:** **------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **2. SEERAVALAPPIL MARIYUMMA, D/O.ABDULLA, MUTTOM, MADAI AMSOM, DESOM P.O., VENGARA.** **R, BY PUBLIC PROSECUTOR SRI.C.N. PRABHAKARAN R,R.2 BY ADV. SRI.O.V.MANIPRASAD** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No. 1354 of 2007 ---------------------------------------------Dated this the 20[th] day of September, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.587/2002 of Additional Sessions Judge, Adhoc-III, Thalassery. He was the accused in C.C. No.222/1999 of Judicial First Class Magistrate Court, Payannur, 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 u/s.138 of the N.I. Act and sentenced to simple imprisonment for one year and fine of Rs.5,000/-, in default simple imprisonment for three months. Against that, he preferred the above Criminal Appeal, where the learned Additional Sessions Judge modified the sentence to imprisonment till rising of Court and compensation of Crl.R.P.No.1354/2007 2 Rs.3,75,000/- u/s.357(3) Cr.P.C. with a default sentence of simple imprisonment for one year. Being aggrieved by that, he preferred this revision petition. 2. The complainant's case in the trial Court is that the accused and his elder brother sold his property for a sum of 10,75,000/-, but they failed to pay the consideration amount to the complainant. As part of the mediation, they agreed to pay the amount and issued two cheques for Rs.3,75,000/- each drawn on Canara Bank, Payyangadi branch. When the complainant presented the cheques for encashment, they were dishonoured for the reason of funds insufficient. The complainant demanded the amount by giving a notice in writing. Even after receipt of notice, there was no payment. Hence, he filed the above complaint in the trial Court. To prove the case, the complainant examined PW1 to PW5 and marked Exts.P1 to P8. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 to DW3 Crl.R.P.No.1354/2007 3 and marked Exts.D1 to D7 as documentary evidence. 3. When the matter came up for hearing, there was no representation. In the circumstances, this Court issued notice to the revision petitioner. Subsequently, S.I. Payyangadi reported that the revision petitioner died on 25.3.2008. The S.I. produced the death certificate of the revision petitioner, which is marked as Ext.C1. As per Ext.C1, the revision petitioner died on 25.3.2008 and the 2[nd] respondent has no dispute with regard to that aspect. After the death of the accused, there is no abatement in revision. 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 Crl.R.P.No.1354/2007 4 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 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 Crl.R.P.No.1354/2007 5 144] 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. 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 Crl.R.P.No.1354/2007 6 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. For ascertaining the illegality or irregularity, I have examined the oral and documentary evidence. In the trial Court, the complainant, 2[nd] respondent examined five witnesses. PW1 is the complainant. Her evidence shows that her property was sold by the revision petitioner and her brother for a total sum of Rs.10,75,000/-, but they failed to pay the amount after selling the property. In mediation, they agreed to pay sum of Rs.7,50,000/- and issued two cheques each for Rs.3,75,000/-. When the cheques were presented for encashment, they were dishonoured for the reason of funds insufficient. Exts.P1 and P4 are the cheques. Exts.P2 and P5 are the dishonour memos. Ext.P3 is the notice. Ext.P3 (a) is the postal receipt and Ext.P3(b) is the postal acknowledgment card. Ext.P7 is the copy of the agreement. Crl.R.P.No.1354/2007 7 Ext.P6 is the extract of the account. Ext.P8 is the building extract. PW2, who is the mediator supported the evidence of PW1. Analysing the evidence of PW1 and PW2 it is clear that Exts.P1 and P4 were issued in discharge of liability and they were dishonoured for the reason of funds insufficient. Therefore, it is clear that Exts.P1 and P4 were dishonoured for the reason of funds insufficiency alone. When cheque is dishonoured for the reason of funds insufficient, a statutory presumption u/s.139 of the N.I. Act can be drawn in favour of the holder of the cheque. 8. 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 Crl.R.P.No.1354/2007 8 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 receipt of notice by the drawer of the cheque. According to Section 139, 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. The principle drawing presumptions has been explained by the Apex Court in _**Hiten P. Dalal**_ v. _**Bratindranath Banerjee**_ (AIR 2001 SC 3879], _**Beena**_ v. _**Muniappan**_ (AIR 2001 SC 2995) Crl.R.P.No.1354/2007 9 and _**Narayana Menon**_ v. _**State of Kerala**_ [2006 (3) KLT 404 (SC)]. They examined DW1 to DW3 to rebut the presumption u/s.139 of the N.I. Act. The evidence of DW1 to DW3 and the documentary evidence Exts.D1 to D3 are not sufficient to rebut the presumption under Section 139 of the N.I.Act. The court below rightly appreciated the evidence and convicted the accused. I do not find any illegality or irregularity in the findings of the court below. There is no merit in this revision petition and accordingly, it is dismissed. ## **P.D. RAJAN, JUDGE.** acd