The death of an accused does not abate a revision petition, and under Section 139 of the Negotiable Instruments Act, the presumption of debt is on the accused to rebut.

ORDER

This revision petition is preferred by the accused against the judgment in Crl.Appeal No.567/2004 of First Additional Sessions Judge, Thiruvananthapuram. He was the accused in S.T. No.1742/2003 of Judicial First Class Magistrate Court-II, Attingal, 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 and sentenced to simple imprisonment for one month and compensation of ₹28,000/- u/s.357(3) Cr.P.C., in default simple imprisonment for two weeks. Against that, the accused preferred the above criminal appeal before First Additional Sessions Court, Thiruvananthapuram, where the learned Sessions Judge modified the sentence to imprisonment till rising of Court and compensation amount ordered by the trial Court was confirmed. Being aggrieved by that, the accused preferred this revision petition.

2. The complainant's case in the trial Court is that the accused availed a loan of ₹25,000/- from him on 12.6.2002 and in discharge of that debt, he issued Ext.P1 cheque. When it 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, the complainant was examined as PW1. His documents were marked as Exts.P1 to P6. The 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, the learned counsel for the revision petitioner submitted that the revision petitioner is no more. In the circumstance, notice was issued to the revision petitioner through Circle Inspector, Chirayinkeezhu, who reported that the revision petitioner died on 5.4.2015. Death Certificate obtained from Attingal Municipality is marked as Ext.C1.

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 Court inPranab Kumar Mitra v.S tate 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 pending the revision it has the power to examine the whole qu