The Negotiable Instruments Act, 1881 - Section 138 - the cheque
might be post dated does not absolve the drawer of a cheque of the penal
consequences of Section 138 of the Negotiable Instruments Act. [Para 36]
The Negotiable Instruments Act, 1881 - Section 138 - The
subsequent filling in of an unfilled signed cheque is not an alteration.
In the absence of any finding that the
cheque in question was not signed by the respondent-accused or not voluntarily
made over to the payee and in the absence of any evidence with regard to the
circumstances in which a blank signed cheque had been given to the
appellant-complainant, it may reasonably be presumed that the cheque was filled
in by the appellant-complainant being the payee in the presence of the
respondent-accused being the drawer, at his request and/or with his
acquiescence. [Para 42]
The Negotiable Instruments Act, 1881 - Section 138 - If a signed
blank cheque is voluntarily presented to a payee, towards some payment, the
payee may fill up the amount and other particulars. This in itself would not
invalidate the cheque. The onus would still be on the accused to prove that the
cheque was not in discharge of a debt or liability by adducing evidence. [Para
38]
The Negotiable Instruments Act, 1881 - Sections 20, 87, 138 and
139 - It is immaterial that the cheque may have been filled in by any person
other than the drawer, if the cheque is duly signed by the drawer.
A meaningful reading of the provisions
of the Negotiable Instruments Act including, in particular, Sections 20, 87 and
139, makes it amply clear that a person who signs a cheque and makes it over to
the payee remains liable unless he adduces evidence to rebut the presumption
that the cheque had been issued for payment of a debt or in discharge of a
liability. It is immaterial that the cheque may have been filled in by any
person other than the drawer, if the cheque is duly signed by the drawer. If
the cheque is otherwise valid, the penal provisions of Section 138 would be
attracted. [Para 37]
The Negotiable Instruments Act, 1881 - Section 139 - Even a
blank cheque leaf, voluntarily signed and handed over by the accused, which is
towards some payment, would attract presumption under Section 139 of the
Negotiable Instruments Act, in the absence of any cogent evidence to show that
the cheque was not issued in discharge of a debt. [Para 40]
The Negotiable Instruments Act, 1881 - Section 139 - the onus to
rebut the presumption under Section 139 that the cheque has been issued in
discharge of a debt or liability is on the accused. [Para 36]
The Negotiable Instruments Act, 1881 - Section 139 - The
existence of a fiduciary relationship between the payee of a cheque and its
drawer, would not disentitle the payee to the benefit of the presumption under
Section 139 of the Negotiable Instruments Act, in the absence of evidence of
exercise of undue influence or coercion.
It is not the case of the
respondent-accused that he either signed the cheque or parted with it under any
threat or coercion. Nor is it the case of the respondent-accused that the
unfilled signed cheque had been stolen. [Para 39]
The Negotiable Instruments Act, 1881 - Section 138 - The fact
that the complainant might have been an Income Tax practitioner conversant with
knowledge of law does not make any difference to the law relating to the
dishonour of a cheque.
The fact that the loan may not have
been advanced by a cheque or demand draft or a receipt might not have been
obtained would make no difference. In this context, it would, perhaps, not be
out of context to note that the fact that the respondent-accused should have given
or signed blank cheque to the appellant-complainant, as claimed by the
respondent-accused, shows that initially there was mutual trust and faith
between them. [Para 41]
The Negotiable Instruments Act, 1881 - Sections 138 and 139 -
Dishonour of cheque for insufficiency, etc., of funds in the account -
Presumption in favour of holder.
The object of Section 138 of the
Negotiable Instruments Act is to infuse credibility to negotiable instruments
including cheques and to encourage and promote the use of negotiable
instruments including cheques in financial transactions. The penal provision of
Section 138 of the Negotiable Instruments Act is intended to be a deterrent to
callous issuance of negotiable instruments such as cheques without serious
intention to honour the promise implicit in the issuance of the same.
THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE
JURISDICTION
(R. BANUMATHI) AND (INDIRA
BANERJEE) JJ.
FEBRUARY 06, 2019
CRIMINAL APPEAL NOS.230-231
OF 2019
(@ SLP(CRL ) NOS. 9334-35
OF 2018)
Bir Singh … Appellant
VERSUS
Mukesh Kumar …Respondent
Petitioner's Advocate : Rajiv Mangla
Respondent's Advocate : Lily Isabel
Thomas
J U D G M E N T
Indira Banerjee, J.
Leave granted.
2. These appeals are against a Judgment and order dated 21-11- 2017
passed by the High Court of Punjab and Haryana at Chandigarh allowing the
Criminal Revisional Application being Criminal Revision Petition No.849 of 2016
filed by the respondent-accused, challenging a judgment and order dated
20-2-2016 passed by the Additional Sessions Judge, Palwal in Criminal Appeal No.13/2015
filed by the respondent-accused, inter alia, affirming
a judgment and order of conviction of the respondent-accused,passed by the
Judicial Magistrate, 1st Class, Palwal under Section 138 of the Negotiable
Instruments Act, 1881.
3. It is the case of the appellant-complainant, that the respondent-accused
issued a cheque being Cheque No.034212 dated 4-3-2012 drawn on Axis Bank,
Branch, Palwal in the name of the appellant towards repayment of a “friendly
loan” of Rs.15 lakhs advanced by the appellant-complainant to the respondent-accused.
4. On 11-4-2012, the appellant-complainant deposited the said cheque
in his bank, but the cheque was returned unpaid with the endorsement “Insufficient
Fund”.
5. The appellant-complainant has alleged that, on the assurance of
the respondent-accused, that there would be sufficient funds in his bank
account to cover the amount of the cheque, the appellant-complainant again
presented the cheque to his bank on 23-5-2012, but it was again returned unpaid
with the remark “Insufficient Fund”.
6. On 15-6-2012, the appellant-complainant issued a legal notice to
the respondent-accused through his lawyer, calling upon the respondent-accused
to pay the cheque amount. The said notice, sent by registered post, was
according to the appellant-complainant, duly served on the respondent-accused.
The respondent-accused, however, did not reply to the notice. Nor did he pay
the cheque amount to the appellant-complainant.
7. The appellant-complainant filed a Criminal Complaint against the
respondent-accused, being Case No.106 of 2012 before the Judicial Magistrate 1st Class,
Palwal, under Section 138 of the Negotiable Instruments Act.
8. Sections 138 and 139 of the Negotiable Instruments Act are set
out herein below for convenience:-
“138
Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount of money to another
person from out of that account for the discharge, in whole or in part, of any
debt or other liability, is returned by the bank unpaid, either because of the
amount of money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to any other provisions of this
Act, be punished with imprisonment for a term which may be extended to two
years, or with fine which may extend to twice the amount of the cheque, or with
both: Provided that nothing contained in this section shall apply unless—
(a) the cheque has been presented to the bank within a period of
six months from the date on which it is drawn or within the period of its
validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the
case may be, makes a demand for the payment of the said amount of money by
giving a notice in writing, to the drawer of the cheque,within thirty days of the
receipt of information by him from the bank regarding the return of the cheque
as unpaid; and
(c) the drawer of such cheque fails to make the payment of the
said amount of money to the payee or, as the case may be, to the holder in due
course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.— For the purposes of this section, “debt or other
liability” means a legally enforceable debt or other liability.]
139. 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.”
9. The object of Section 138 of the Negotiable Instruments Act is to
infuse credibility to negotiable instruments including cheques and to encourage
and promote the use of negotiable instruments including cheques in financial
transactions. The penal provision of Section 138 of the Negotiable Instruments
Act is intended to be a deterrent to callous issuance of negotiable instruments
such as cheques without serious intention to honour the promise implicit in the
issuance of the same.
10. Having regard to the object of Section 138 of the Negotiable Instruments
Act, a prosecution based on a second or successive default in payment of the
cheque amount is not impermissible simply because no statutory notice had been
issued after the first default and no proceeding for prosecution had been
initiated. As held by this Court in MSR Leathers vs. S. Palaniappan & Anr, (2013) 1 SCC 177 there is no real or qualitative difference between a case where default
is committed and prosecution immediately launched and another where the
prosecution is deferred till the cheque presented again gets dishonoured for
the second time or successive times.
11. By a judgment and order dated 9-2-2015, the Judicial Magistrate
I Class, Palwal convicted the respondent-accused under Section 138 of the
Negotiable Instruments Act and sentenced him to undergo simple imprisonment for
a period of one year and further directed him to pay compensation of Rs.15
lakhs to the appellant-complainant within one month from the date of the said Judgment
and order. Being aggrieved, the respondent-accused filed a criminal appeal
No.13/2015 dated 9-3-2015 in the court of Additional Sessions Judge, Palwal.
12. By a judgment and order dated 20-2-2016, the Appellate Court
upheld the conviction of the respondent-accused under Section 138 of the
Negotiable Instruments Act and confirmed the compensation of Rs.15 lakhs
directed to be paid to the appellant-complainant. The sentence of imprisonment
was however reduced to six months from one year.
13. The respondent-accused filed a Criminal Revision Petition being
CRR No.849 of 2016 in the High Court challenging the Judgment and order of the
Appellate Court. The appellant-complainant also filed a Criminal Revision
Petition being CRR No.2017 of 2016 challenging the reduction of the sentence
from one year to six months.
14. By a common final Judgment and order dated 21-11-2017 which is
impugned before us, the High Court has reversed the concurrent factual findings
of the Trial Court and the Appellate Court and acquitted the respondent of the
charge under Section138 of the Negotiable Instruments Act, observing, inter alia, that there was fiduciary relationship between the appellant-complainant,
an Income Tax practitioner, and the respondent-accused who was his client.
15. The High Court observed and held:-
“The complainant had fiduciary relationship with the
accused-petitioner. Therefore, heavy burden was on the complainant to prove
that he had advanced the loan and that blank cheque for the same was given to
him. The complainant is an income tax practitioner and he knows that whenever
loan is advanced to anybody, receipt has to be obtained and that such heavy
amount is to be advanced only through a cheque or demand draft or RTGS. The accused-petitioner
was the client of the complainant and they were having professional
relationship. The accused-petitioner was no so thick and thin with the complainant.
There is no reason why the complainant, who is an income tax practitioner, will
advance such a heavy loan to his client without any close relationship and
without obtaining any writing to this effect. There was heavy burden on the complainant.
In such circumstances, the accusedpetitioner is successful in raising
reasonable doubts that the complainant might have misused one of the blank
cheques given to him for payment of income tax for depositing the same in the
Treasury.
In order to support his case, the accusedpetitioner took a risk
by stepping himself into the witness box and offered himself for
crossexamination. He asserted in his cross-examination that the tax return was
deposited in cash and the complainant used to take cash from him. His version was
also supported by one Praveen Kumar, DW2.
From the abovenoted discussions, it is clear that the parties
were in fiduciary relationship and heavy burden was on the complainant to prove
that he had advanced a loan of Rs.15,00,000/- to his clientwithout obtaining
any writing and that he has not misused any blank cheque of his client. Such
loan was not shown in the income tax return of the complainant.
For the reasons mentioned above, the case of the complainant
becomes highly doubtful and is not beyond all reasonable doubts. Therefore, no presumption
under Section 138 of the Negotiable Instruments Act, 1881 can be raised. Both
the courts below erred in holding the accused-petitioner guilty for the
commission of offence punishable under Section 138 of the Negotiable
Instruments Act, 1881.
In view of the foregoing discussions, CRR No. 849 of 2016 is
allowed and CRR No.2017 of 2016 is dismissed. The accused- petitioner stands
acquitted of the notice of accusation served upon him.”
16. The short question before us is whether the High Court was right
in reversing the concurrent factual findings of the Trial Court and of the
Appellate court in exercise of its revisional jurisdiction. The questions of
law which rise in this appeal are, (i) whether a revisional Court can, in
exercise of its discretionary jurisdiction, interfere with an order of
conviction in the absence of any jurisdictional error or error of law and (ii)
whether the payee of a cheque is disentitled to the benefit of the presumption
under Section 139 of the Negotiable Instruments Act, of a cheque duly drawn,
having been issued in discharge of a debt or other liability, only because he
is in a fiduciary relationship with the person who has drawn the cheque.
17. The Trial Court, on analysis of the evidence adduced by the respective
parties arrived at the factual finding that the respondent-accused had duly
issued the cheque in question for Rs.15 lakhs in favour of the
appellant-complainant, in discharge of a debt or liability, the cheque was
presented to the bank for payment within the period of its validity, but the
cheque had been returned unpaid for want of sufficient funds in the account of
the respondent-accused in the bank on which the cheque was drawn. Statutory
Notice of dishonour was duly issued to which there was no response from the
respondent-accused.
18. The Appellate Court affirmed the aforesaid factual findings. The
Trial Court and the Appellate Court arrived at the specific concurrent factual
finding that the cheque had admittedly been signed by the respondent-accused.
The Trial Court and the Appellate Court rejected the plea of the
respondent-accused that the appellant-complainant had misused a blank signed
cheque made over by the respondent-accused to the appellant-complainant for
deposit of Income Tax, in view of the admission of the respondent-accused that
taxes were paid in cash for which the appellant-complainant used to take
payment from the respondent in cash.
19. It is well settled that in exercise of revisional jurisdiction
under Section 482 of the Criminal Procedure Code, the High Court does not, in
the absence of perversity, upset concurrent factual findings. It is not for the
Revisional Court to re-analyse and re-interpret theevidence on record.
20. As held by this Court in Southern Sales and Services and Others vs. Sauermilch Design and
Handels GMBH, (2008) 14 SCC 457 it is a well established principle of law that the
Revisional Court will not interfere even if a wrong order is passed by a court
having jurisdiction, in the absence of a jurisdictional error. The answer to the
first question is therefore, in the negative.
21. In passing the impugned judgment and order dated 21-11- 2017,
the High Court mis-construed Section 139 of Negotiable Instruments Act, which
mandates that unless the contrary is proved, it is to be presumed 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. Needless to mention that the
presumption contemplated under Section 139 of the Negotiable Instruments Act,
is a rebuttable presumption. However, the onus of proving that the cheque was not
in discharge of any debt or other liability is on the accused drawer of the
cheque.
22. In Hiten
P. Dalal vs. Bratindranath Banerjee, (2001)
6 SCC 16 this Court held that
both Section 138 and 139 require that the Court shall presume the liability of
the drawer of the cheques for the amounts for which the cheques are drawn.
Following the judgment of this Court in State of Madras vs. Vaidyanatha Iyer, AIR 1958 SC 61 this
Court held that it was obligatory on the Court to raise this presumption.
23. Section 139 introduces an exception to the general rule as to the
burden of proof and shifts the onus on the accused. The presumption under
Section 139 of the Negotiable Instruments Act is a presumption of law, as
distinguished from presumption of facts. Presumptions are rules of evidence and
do not conflict with the presumption of innocence, which requires the
prosecution to prove the case against the accused beyond reasonable doubt. The obligation
on the prosecution may be discharged with the help of presumptions of law and
presumptions of fact unless the accused adduces evidence showing the reasonable
possibility of the nonexistence of the presumed fact as held in Hiten P. Dalal (supra).
24. Presumption of innocence is undoubtedly a human right as contended
on behalf of the respondent-accused, relying on the judgments of this Court in Ranjitsing Brahmajeetsing
Sharma vs. State of Maharashtra and Anr; (2005)
5 SCC 294 and Rajesh Ranjan Yada @ Pappu Yadav vs. CBI through its Director, (2007) 1 SCC 70. However
the guilt may be established by recourse to presumptions in law and presumptions
in facts, as observed above.
25. In Laxmi
Dyechem vs. State of Gujarat & Ors., (2012)
13 SCC 375 this Court reiterated
that in view of Section 139, it has to be presumed that a cheque was issued in
discharge of a debt or other liability but the presumption could be rebutted by
adducing evidence. The burden of proof was however on the person who wanted to
rebut the presumption. This Court held “however, this presumption coupled with
the object of Chapter XVII of the Act leads to the conclusion that by
countermanding payment of a post dated cheque, a party should not be allowed to
get away from the penal provision of Section 138 of the Act”.
26. In Kumar
Exports vs. Sharma Carpets, (2009) 2 SCC 513 this Court reiterated that there is a presumption that every
negotiable instrument duly executed, is for discharge of a debt or liability,
but the presumption is rebuttable by proving the contrary. In the facts and
circumstances of the case it was found that the cheque in question was towards
advance for purchase of carpets, which were in fact not sold by the payee of
the cheque to the drawer, as proved from the deposition of an official of the
Sales Tax Department, who stated that the payee had admitted that he had not
sold the carpets.
27. In K.N.
Beena vs. Muniyappan and Another, (2001) 8 SCC 458 this Court held that in view of the provisions of Section 139 of
the Negotiable Instruments Act read with Section 118 thereof, the Court had to
presume that the cheque had been issued for discharging a debt or liability.
The said presumption was rebuttable and could be rebutted by the accused by
proving the contrary. But mere denial or rebuttal by the accused was not enough.
The accused had to prove by cogent evidence that there was no debt or
liability. This Court clearly held that the High Court had erroneously set
aside the conviction, by proceeding on the basis that denials/averments in the
reply of the accused were sufficient to shift the burden of proof on the
complainant to prove that the cheque had been issued for discharge of a debt or
a liability. This was an entirely erroneous approach. The accused had to prove
in the trial by leading cogent evidence that there was no debt or liability.
28. In R.
Vijayan vs. Baby and Another, (2012)
1 SCC 260 this Court observed that the object of Chapter XVII
of the Negotiable Instruments Act is both punitive as also compensatory and
restitutive. It provides a single forum and single proceeding for enforcement
of criminal liability by reason of dishonour of cheque and for enforcement of the
civil liability for realization of the cheque amount, thereby obviating the
need for the creditor to move two different fora for relief. This Court
expressed its anguish that some Magistrates went by the traditional view, that
the criminal proceedings were for imposing punishment and did not exercise
discretion to direct payment of compensation, causing considerable difficulty
to the complainant, as invariably the limitation for filing civil cases would
expire by the time the criminal case was decided.
29. In R.
Vijayan vs. Baby and another (supra) this
Court observed that unless there were special circumstances, in all cases of
conviction, the Court should uniformly exercise the power to levy fine up to
twice the cheque amount and keeping in view the cheque amount and the simple
interest thereon at 9% per annum as the reasonable quantum of loss, direct
payment of such amount as compensation. This Court rightly observed that uniformity
and consistency in deciding similar cases by different courts not only
increases the credibility of the cheque as a Negotiable Instrument but also the
credibility of the Courts of Justice.
30. The judgment of this Court in Raj Kumar Khurana vs. State of (NCT of Delhi) & Anr., (2009) 6 SCC 72 was
rendered in the particular facts of the case where the drawer of the cheque had
reported to the police and the bank that two unfilled cheques signed by him had
been stolen.
31. The proposition as re-enunciated in John K John vs. Tom Varghese
& Anr.,
(2007) 12 SCC 714 cited on behalf of the respondent-accused that if two views are
possible, this Court, in exercise of its jurisdiction under Article 136 of the
Constitution would ordinarily not interfere with a judgment of acquittal, is
well settled.
32. In the aforesaid case this Court affirmed an acquittal under Section
138 of the Negotiable Instrument Act, in the peculiar facts and circumstances
of the case where several civil suits between the parties were pending.
33. In Krishna
Janardhan Bhat vs. Dattatraya G. Hegde, (2008) 4 SCC 54 cited
on behalf of the respondent-accused, this Court reaffirmed that Section 139 of
the Act raises a presumption that a cheque duly drawn was towards a debt or
liability. However, keeping in view the peculiar facts and circumstances of the
case, this Court was of the opinion that the courts below had approached the
case from a wholly different angle by wrong application of legal principles.
34. It is well settled that a judgment is a precedent for the issue of
law which is raised and decided. It is the ratio decidendi of
the case which operates as a binding precedent. As observed by this Court in State of Punjab & Ors.
vs. Surinder Kumar & Ors., (1992) 1 SCC 489 what is binding on all courts is what the Supreme Court says
under Article 141 of the Constitution, which is declaration of the law and not
what it does under Article 142 to do complete justice.
35. Furthermore, to quote V. Sudhish Pai from
his book “Constitutional Supremacy - A Revisit”:-
“Judgments and observations in judgments are not to be read as
Euclid’s theorems or as provisions of statute. Judicial
utterances/pronouncements are in the setting of the facts of a particular case.
To interpret words and provisions of a statute it may become necessary for
judges to embark upon lengthy discussions, but such discussion is meant to
explain not define, Judges interpret statutes, their words are not to be interpreted as statutes. Thus, precedents are
not to be read as statutes.”
36. The proposition of law which emerges from the judgments referred
to above is that the onus to rebut the presumption under Section 139 that the
cheque has been issued in discharge of a debt or liability is on the accused
and the fact that the cheque might be post dated does not absolve the drawer of
a cheque of the penal consequences of Section 138 of the Negotiable Instruments
Act.
37. A meaningful reading of the provisions of the Negotiable Instruments
Act including, in particular, Sections 20, 87 and 139, makes it amply clear
that a person who signs a cheque and makes it over to the payee remains liable
unless he adduces evidence to rebut the presumption that the cheque had been
issued for payment of a debt or in discharge of a liability. It is immaterial
that the cheque may have been filled in by any person other than the drawer, if
the cheque is duly signed by the drawer. If the cheque is otherwise valid, the
penal provisions of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards
some payment, the payee may fill up the amount and other particulars. This in
itself would not invalidate the cheque. The onus would still be on the accused
to prove that the cheque was not in discharge of a debt or liability by
adducing evidence.
39. It is not the case of the respondent-accused that he either signed
the cheque or parted with it under any threat or coercion.Nor is it the case of
the respondent-accused that the unfilled signed cheque had been stolen. The
existence of a fiduciary relationship between the payee of a cheque and its
drawer, would not disentitle the payee to the benefit of the presumption under Section
139 of the Negotiable Instruments Act, in the absence of evidence of exercise
of undue influence or coercion. The second question is also answered in the
negative.
40. Even a blank cheque leaf, voluntarily signed and handed over by
the accused, which is towards some payment, would attract presumption under
Section 139 of the Negotiable Instruments Act, in the absence of any cogent
evidence to show that the cheque was not issued in discharge of a debt.
41. The fact that the appellant-complainant might have been an Income
Tax practitioner conversant with knowledge of law does not make any difference
to the law relating to the dishonour of a cheque. The fact that the loan may
not have been advanced by a cheque or demand draft or a receipt might not have
been obtained would make no difference. In this context, it would, perhaps, not
be out of context to note that the fact that the respondent-accused should have
given or signed blank cheque to the appellant-complainant, as claimed by the
respondent-accused, shows that initially there was mutual trust and faith
between them.
42. In the absence of any finding that the cheque in question was not
signed by the respondent-accused or not voluntarily made overto the payee and
in the absence of any evidence with regard to the circumstances in which a
blank signed cheque had been given to the appellant-complainant, it may
reasonably be presumed that the cheque was filled in by the appellant-complainant
being the payee in the presence of the respondent-accused being the drawer, at
his request and/or with his acquiescence. The subsequent filling in of an
unfilled signed cheque is not an alteration. There was no change in the amount
of the cheque, its date or the name of the payee. The High Court ought not to
have acquitted the respondent-accused of the charge under Section 138 of the
Negotiable Instruments Act.
43. In our considered opinion, the High Court patently erred in holding
that the burden was on the appellant-complainant to prove that he had advanced
the loan and the blank signed cheque was given to him in repayment of the same.
The finding of the High Court that the case of the appellant-complainant became
highly doubtful or not beyond reasonable doubt is patently erroneous for the
reasons discussed above.
44. The appeals are allowed. The judgment and order of the High Court
is set aside. The conviction of the respondent under Section 138 of the
Negotiable Instruments Act is confirmed. However, the respondent-accused is
sentenced only to fine, which is enhanced to Rs.16 lakhs and shall be paid as
compensation to the appellant-complainant. The fine shall be deposited in the
Trial Court within eight weeks from the date, failing which the sentence of imprisonment
of one year as imposed by the Trial Court shall revive. There shall be no order
as to costs.