The court reaffirmed that once a cheque is dishonored for insufficient funds, a statutory presumption of liability arises under Section 139 of the N.I. Act, placing the burden on the accused to prove otherwise.

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 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 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 2nd 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 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 Cou