Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 537 (GUJ)

Rameshbhai Muljibhai Thakar v. State Of Gujarat

2019-05-03

V.P.PATEL

body2019
JUDGMENT : 1. The present Applicant/Original Accused has filed this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short “Cr. P.C.”) being aggrieved and dissatisfied with the judgment and order dated 5.5.2016 passed in Criminal Appeal No. 3/2013 by the learned Principal Sessions Judge, Kheda at Nadiad confirming the order dated 13.12.2006 passed by the learned 2nd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Nadiad in Criminal Case No. 3165 of 2004. Order Under Challenge: 2. The Applicant/Accused was convicted under Section 255(2) of the Criminal Procedure Code for the offence punishable under Section 138 of the Negotiable Instruments Act 1881 and was sentenced to undergo SI for 4 months imprisonment and fine of Rs.3000/-, in default of payment of fine to undergo further SI for 15 days. Submission of the Learned Advocates: 3. Heard learned Advocate Mr. Manoj T. Dhanak for Applicant and learned APP Ms. C.M.Shah for the Opponent No. 1 - State of Gujarat. 4. Learned Advocate for the Applicant has submitted that the Applicant-Rameshbhai Muljibhai Thakar (Original Accused) has been expired. He submitted that due to death of the Applicant, the present Criminal Revision Application does not survive. He stated that the present Criminal Revision Application may be abated. He submitted that if the Hon’ble Court is not inclined to abate the Criminal Revision Application, in that circumstance he do not assail the order of conviction passed against applicant-accused and press for reasoned order so far as the sentence is concerned. That the survival family member of the Applicant are suffering from poor economic condition. He further requested to reduce the fine amount up to what is deposited before this court. 5. Learned APP has submitted the letter addressed to her by Police Inspector, B.G.Parmar, Police Inspector, Nadiad Town Police Station along with two more documents i.e. one is death certificate of the Applicant and the second is the statement of grand son of the Applicant. As requested by learned APP, the said letter and the documents are taken on record. Learned APP has submitted that considering the facts and circumstances of the case, just and equitable order may be passed. 6. As requested by learned APP, the said letter and the documents are taken on record. Learned APP has submitted that considering the facts and circumstances of the case, just and equitable order may be passed. 6. Merit of the Case: 6.1 Facts of the Case: That the son of the Applicant-Accused had taken a vehicle loan of Rs.2,60,000/- from the complainant but the son of the Applicant has not paid the installment regularly. That thereafter the complainant-bank had initiated recovery proceedings for loan amount. That the complainant had given notices to the son of the petitioner. That thereafter the complainant-bank had filed Lavad Case before the Board of Nominees bearing Lavad Case No. 85/2004 for recovery of Rs.4,15,917. It is stated that in the said Lavad Case, the Ld. Board of Nomnees had issued summons for seizure and therefore, the officials had gone to serve the said seizure summons, at that time, the officials have forcefully taken the cheque bearing No. 158001 dated 31.3.2004 for an amount of Rs.1,37,000/- drawn on Indian Bank, Nadiad Branch. That thereafter on presentation of the said cheque, the same was deposited by the complainant-bank in its bank and the same was returned with an endorsement “insufficient fund”. That the complainant thereafter had issued notice on 12.4.2014 to the Applicant. As the notice period was over, the complainant-bank filed Criminal Complaint before the learned Magistrate on 20.5.2004. That the complainant-bank had produced various documents and evidence before the learned Magistrate and the learned after hearing the parties the learned Magistrate has convicted the Applicant/Accused for sentence of 4 months of SI with fine of Rs.3000 and in default of payment of rine SI for further period of 15 days. 7. On perusing the death certificate issued by the Department of Health and Family Welfare, Sub-Registrar, Nadiad Nagarpalika, it reveals the following facts: Name : Rameshbhai Date of death : 10.01.2019 Name of Father : Muljibhai Revashankar Thakar Date of Registration : 17.01.2019 Registration No. : 084DR20190000122 8. On perusing the statement of Nikunkj, grandson of the Applicant-Rameshbhai Muljibhai Thakar, recorded by the Police Inspector, Nadiad Town, it is stated that the Applicant was his grand father. That his grand father expired on 10.1.2019 and is father is also died on 12.6.2016. He has produced the death certificate. 9. On perusing the statement of Nikunkj, grandson of the Applicant-Rameshbhai Muljibhai Thakar, recorded by the Police Inspector, Nadiad Town, it is stated that the Applicant was his grand father. That his grand father expired on 10.1.2019 and is father is also died on 12.6.2016. He has produced the death certificate. 9. It is beneficial to reproduce Section 394 of Cr.P.C. which deals with abatement of Appeal, which reads under: “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.” 10. Now the question remains that whether the revision can be abated on the death of the Applicant of the Revision. This Court has come across the judgment of the Hon’ble Apex Court in case of State of Kerala v. Narayani Amma Kamla Devi & Ors. reported in AIR 1962 SC 1530 . The Hon’ble Apex Court has held as under: “10. It is thus clear that though apparently the High Court’s powers of revisions were not exercised in that case, all the three judges agreed in thinking that in a proper case this could and should be done even after the death of the convicted person. 11. This case was considered’ by this Court in Pranab Kumar Mitra v. The State of West Bengal (1). The question in Pranab Kumar Mitra’s case was, whether where the accused has been sentenced to & fine and imprisonment till the rising of the Court and the convicted person had served out his nomi- nal sentence of imprisonment and died when his application in revision was pending before the High Court, the High Court could exercise its powers of revision in respect of the question of conviction and sentence. It was hold that such powers could be exercised and could not be limited on the analogy of s. 431 of the Code which did not apply to a revision case. After referring to the decision of the Bombay High Court in Dongaji Andaji’s Case (1) and the distinction drawn by the learned Judges therein between the High Court’s power to deal with an appeal on the death of a convicted person and its power to exercise revisional jurisdiction even after such death,, this Court went on to observe at p.70 of the Report:- “We may assume that the Legislature was aware of the decision of the Bombay, High Court, referred to above, when it ‘enacted s. 431 for the first time in the Code of 1882. If the Legislature intended that an application in revision pending in a High Court, should be dealt with on the same footing as a pending appeal it would have enacted accordingly. But in the absence of any such enactment, we may infer that the power of revision vested in the High Court under Chapter XXXII of the Code, was left untouched-to be exercised according to the exigencies of each case.” 12. It appears, to us that though in Pranab Kumar’s Case(2) this Court was directly concerned with the effect of a convicted person’s death on a pending revisional application, the judgment also expresses the view that a revisional application could be entertained even after the death the convicted person. On this authority and also for the reasons discussed earlier, we have come ‘to the conclusion that the High Court was right in holding that the application for revision could be entertained under s. 439 of the Code of Criminal Procedure.” 11. Considering the provisions of Section 394 of Cr.P.C. and the ratio laid down by the Hon’ble Supreme Court, it is very clear that Section 394 of Cr.P.C. is applicable in case of Appeals and not in case of Criminal Revision Application filed by any person. There is no provision similar to Section 394 for abatement of Criminal Revision. No where in the Cr.P.C. it is stated that a revision petition can be or cannot be made in respect of an order of conviction when convicted person is dead. There is no provision similar to Section 394 for abatement of Criminal Revision. No where in the Cr.P.C. it is stated that a revision petition can be or cannot be made in respect of an order of conviction when convicted person is dead. Thereafter, even after the death of the Applicant who is in the revision petition would survive and the court can pass appropriate orders with regard to the sentence of fine. 12. The Applicant was convicted vide order dated 13.12.2012 by the learned Second Additional Senior Civil Judge and 2nd Additional Chief Judicial Magistrate, Nadiad in Criminal Case No. 3165/2004 wherein the Applicant-Accused was convicted under Section 255(2) of the Code of Criminal Procedure Court for the offence under Section 138 of the Negotiable Instruments Act. The Applicant-Accused was sentenced for SI of 4 months SI and also fine of Rs.3000/-, in default of fine, the Applicant-Accused has to suffer further SI for 15 days. The said conviction order was challenged before the Sessions Court, Kehda at Nadiad by way of filing Criminal Appeal under Section 374 of the Cr.P.C. The said Criminal Appeal was numbered as Criminal Appeal No. 3 of 2013. The said Criminal Appeal is dismissed by order dated 5.5.2016 by the learned Sessions Judge, Kehda at Nadiad and confirmed the order dated 13.12.2012 of the learned Additional Chief Judicial Magistrate in Criminal Case No. 3156/2004. 13. Learned Advocate for Applicant has not pressed for the reasoned order and not assailed the conviction order against the Applicant/Accused. He has requested to minimize fine. The Applicant/Accused has been expired. His son also expired before the Applicant. The loan was taken for son of the Applicant. Now the grandson of Applicant is survived. The liability will be on him without his fault. 14. Registry has certified that the amount of Rs.18,875/- is received by the Applicant-Accused vide receipt dated 1.9.2016, which still pending for disbursement. The Applicant/Accused has been expired. His son also expired before the Applicant. The loan was taken for son of the Applicant. Now the grandson of Applicant is survived. The liability will be on him without his fault. 14. Registry has certified that the amount of Rs.18,875/- is received by the Applicant-Accused vide receipt dated 1.9.2016, which still pending for disbursement. 15.Considering the facts and circumstances more particularly the submissions made on part of learned Advocate for Applicant-Accused as regards to the poor economic condition of the family of the Applicant-Accused, in the interest of justice, the judgment and order dated 5.5.2016 passed in Criminal Appeal No. 3/2013 by the learned Principal Sessions Judge, Kheda at Nadiad confirming the order dated 13.12.2006 passed by the learned 2nd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Nadiad in Criminal Case No. 3165 of 2004 for the offence under Section 138 of the Negotiable Instruments Act is modified as under: (a) The fine imposed by the learned Trial Court is confirmed. (b) The sentence imposed on Applicant/Accused by the Trial Court is set aside. (c) It is ordered that the Applicant/Accused shall pay Rs.18,875/- (Rupees Eighteen thousand eight hundred seventy five only) as compensation u/s 357(3) of the Cr.P.C. to the Original Complainant. (d) The Registry is directed to transfer the amount of Rs.18875/- deposited by the Applicant/Accused with the Account of Trial Court. The Trial Court shall pay such amount to the Original Complainant according to Rules on proper verification. 16. In view of this, the Criminal Revision Application stands disposed of accordingly. Rule is made absolute.