Revisions in criminal cases survive the death of the accused, and the presumption of debt under Section 139 of the Negotiable Instruments Act remains unless rebutted by the accused.

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 of the 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.

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, 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.”

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 High Court thin