T. Sahadevan v. Sivadasan and State of Kerala

## **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. 2850 OF 2005 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.23/2004 OF II ADDITIONAL SESSIONS JUDGE, PALAKKAD DATED 19-08-2005** **AGAINST THE JUDGMENT IN CC NO.224/2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PALAKKAD DATED 17-11-2003** **----------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **T.SAHADEVAN, S/O THANKAPPAN, NEAR VICTORIA COLLEGE, VADAKKANTHARA, PALAKKAD, NOW WORKING AT CORPORATION BANK, ZONAL OFFICE, 2081-C, 2ND FLOOR, M.G. ROAD, RAVIPURAM, ERNAKULAM.** **BY ADVS.SRI.K.S.DILIP SRI.SAJU N.A. SRI.LIJOY P.VARGHESE [LEGAL AID COUNSEL]** **RESPONDENT(S)/COMPLAINANT::** **---------------------------** **1. T.SIVADASAN, S/O THANKAPPAN, SINDHU NIVAS, AKATHETHARA, PALAKKAD.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY ADVS. SRI.G.G.MANOJ** **SRI.RAJESH SIVARAMANKUTTY R2 BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **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.2850 of 2005 ---------------------------------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.23 of 2004 of the Additional Sessions Judge-II, Palakkad. He was the accused in C.C. No.224 of 2002 by the Judicial First Class Magistrate-II, Palakkad 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 six months under Sec.138 of the NI Act and compensation of Rs.55,000/- 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 2[nd] Additional Sessions Judge modified the sentence to simple imprisonment for one month and compensation of Rs.55,000/- within one month in default, simple imprisonment for three months. Being aggrieved by that, the accused preferred this revision petition. Crl. Rev.Pet. No.2850 of 2005 2 2. The complainant's case in the trial court was that the revision petitioner/accused borrowed a sum of Rs.80,000/- (Rupees eighty thousand only) from him and in discharge of that debt, he issued Ext.P2 cheque for Rs.55,000/-. When Ext.P2 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, complainant was examined as PW1 in the trial court and his documents were marked as Exts.P1 to P7. 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, there was no representation for the revision petitioner. In the circumstance, this Court directed the Dy.S.P., Palakkad to furnish a report. As per the direction, Dy.S.P., Palakkad reported that revision petitioner is no more. He produced the death certificate obtained from the Crl. Rev.Pet. No.2850 of 2005 3 Palakkad Municipality, which is marked as Exts.C1. As per Ext.C1 revision petitioner died on 07.01.2015. 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 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 Crl. Rev.Pet. No.2850 of 2005 4 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 notwithstanding the death of the convicted person Crl. Rev.Pet. No.2850 of 2005 5 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. 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: Crl. Rev.Pet. No.2850 of 2005 6 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 cheque, within fifteen days of the receipt of the said notice. 7. 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 Crl. Rev.Pet. No.2850 of 2005 7 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 receipt of notice by the drawer of the cheque. In this backdrop, I have examined the evidence of PW1. He deposed that Ext.P1 promissory note was executed in favour of the complainant and Ext.P2 cheque was executed by the revision petitioner to the complainant. When Ext.P2 was presented for encashment, it was dishonoured for the reason of funds Crl. Rev.Pet. No.2850 of 2005 8 insufficient. Ext.P3 is the dishonour memo, Ext.P4 is the intimation, Exts.P5 is the lawyer notice, Ext.P6 is the postal receipt and Ext.P7 is acknowledgment. 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. 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.** Crl. Rev.Pet. No.2850 of 2005 9 **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 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** Crl. Rev.Pet. No.2850 of 2005 10 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 this case, no evidence has been adduced in the trial court to rebut the presumption. In the circumstance, there is no illegality or irregularity in the finding of the Courts below. There is no merit in this revision petition and it is dismissed accordingly. Sd/- **P.D. RAJAN, JUDGE** NS/23.11.2016 / True Copy / P.A. To Judge