T. Sankara Narayanan v. V.K. Sajeev and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938** **Crl.Rev.Pet.No. 1195 of 2003 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO.134/2001 of SESSIONS COURT, MANJERI DATED 31-03-2003** **AGAINST THE JUDGMENT IN S.T.NO.158/1997 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI, DATED 25.05.2001** ## **REVISION PETITIONER(S)APPELLANT/ACCUSED:** **----------------------------------------------------------------------** **T.SANKARA NARAYANAN, S/O.GOVINDAN NAIR, PUTHANPURAYIL, PANNIKOTTUPADI, PATHIRIYAL,THIRUVALI, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT(S)/COMPLAINANT & STATE:** **------------------------------------------------------------** **1. V.K.SAJEEV, S/O.SIVARAMA PANICKER, 'LATHIKA NIVAS', VELLILA P.O., MANKADA, MALAPPURAM DISTRICT.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31.** ## **R2 BY PUBLIC PROSECUTOR SHRI.D.CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1808-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bb** ## **P.D.RAJAN, J.** ## **============================== Crl.R.P.No.1195 of 2003 ============================== Dated this, the 18[th] day of August, 2016.** ## **O R D E R** This revision petition is filed by the accused, against the judgment in Crl.A.No.134/2001 of Sessions Judge, Manjeri. He was accused in S.T.No.158/1997 of Chief Judicial Magistrate Court, Manjeri, for having committed offence punishable under Section 138 of the Negotiable Instruments Act. The learned Magistrate convicted the accused under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.10,000/- in default, to undergo simple imprisonment for one month. Against that, accused preferred Crl.A.No.134/2001 before Sessions Judge, Manjeri, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. Crl.R.P.No.1195 of 2003 : 2 : 2. The complainant's case in the Trial Court is that, on 14.05.1996, accused borrowed a sum of Rs.1,00,000/- from him and in discharge of that debt, he issued Ext.P1 cheque drawn on Canara Bank, Manjeri. When it was presented through South Malabar Gramin Bank, Manjeri, it was dishonoured for the reason of 'funds insufficient'. The complainant demanded the amount by giving a notice in writing. There was no repayment. In the circumstance, he filed a complaint in the Trial Court. During trial, complainant was examined as PW1 and his documents were marked as Exts.P1 to P9. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 as a defence witness in the Trial Court. 3. When the matter came up for hearing, the learned counsel appearing for the revision petitioner submitted that, revision petitioner is no more. In the circumstance, this Court directed Dy.S.P., Malappuram, Crl.R.P.No.1195 of 2003 : 3 : to furnish a report, accordingly, he reported that the revision petitioner T.Sankara Narayanan died on 29.10.2013 and the Death Certificate obtained from Registrar of Births and Deaths of Perinthalmanna Municipality is marked as Ext.C1. 4. According to Section 394 of the Code of Criminal Procedure, after the death of the accused, every appeal shall finally abate except an appeal from a sentence of fine, but, there is no abatement in revision. 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.”_ Crl.R.P.No.1195 of 2003 : 4 : 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 144]** considered the question of abatement in revision and observed that where the Crl.R.P.No.1195 of 2003 : 5 : 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 on record or in the Crl.R.P.No.1195 of 2003 : 6 : 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. I have examined the oral evidence of the complainant. His evidence shows that, Ext.P1 was issued in discharge of a debt. When it was presented for encashment, it was dishonoured for the reason of 'funds insufficient'. Exts.P2 and P3 are the Dishonour Memos received from the banks. Ext.P4 is the Lawyer Notice. Exts.P5 and P6 are the Postal receipt and Postal acknowledgment card. Ext.P7 is the Reply Notice. Exts.P8 and P9 are the Cheque Return Register and Extract of ledger. A perusal of the evidence of PW1 and Exts.P1 to P9 shows that, when Ext.P1 was presented for encashment, it was dishonoured for the reason of 'funds insufficient'. When cheque is dishonoured for the reason stated under Section 138 of the Negotiable Instruments Act, a presumption under Crl.R.P.No.1195 of 2003 : 7 : Section 139 can be drawn in favour of the holder of the cheque. ## 8. 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._ The Apex Court 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 circumstances upon which he relies. The Apex _**-**_ Court in _**M/s.Mandvi Co op. Bank Ltd. Vs. Nimesh B.Thakore**_ **[AIR 2010 (2) SC 1402]** held that rebuttal presumption is created under Section 139 and the cheque was issued by the drawer in discharge of a debt really owned by him. The revision petitioner Crl.R.P.No.1195 of 2003 : 8 : examined DW1 to rebut the presumption under Section 139 of the Negotiable Instruments Act. The evidence of DW1 shows that, his elder brother Suresh obtained a loan of Rs.5,000/- from the first respondent, which was not paid. At that time, the first respondent demanded the cheque as security. DW1 also stated that, the signed cheque of his father kept in the drawer of the table was taken by Suresh and handed over to the first respondent. All these defence contentions were rejected by the Trial Court which was upheld by the Appellate Court also. Therefore, I am of the view that the conviction and sentence passed by the Trial Court does not warrant any interference. There is no merit in this Revision Petition and this Revision Petition is dismissed accordingly. Sd/- **P.D.RAJAN, JUDGE.** Bb/20/08/2016 _[True copy] P.A to Judge_