Kala vs Jayakumari
2022 Latest Caselaw 3109 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                  THE HONOURABLE MRS. JUSTICE MARY JOSEPH
 THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
                        CRL.REV.PET NO. 167 OF 2022
  AGAINST THE JUDGMENT DATED 08.09.2021 IN CRL. APPEAL NO.
 81/2020 OF II ADDITIONAL SESSIONS COURT,THIRUVANANTHAPURAM


 AGAINST THE JUDGMENT IN C.C.NO.1108/2017 OF JUDICIAL FIRST
              CLASS MAGISTRATE COURT-XII, THIRUVANANTHAPURAM


REVISION PETITIONER/APPELLANT/ACCUSED:

                KALA, D/O SAROJINI,
                AGED 48 YEARS, T C 41-1611
                MANACAUD P O
                THIRUVANANTHAPURAM.
                BY ADVS. SMT.A.SAKUNTHALA
                         SRI.PEROORKADA G SUDHEESH


RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:

         1.     JAYAKUMARI, W/O SURENDRAN NAIR,
                AGED 53 YEARS, GOWRI KRISHNA
                PRAVACHAMBALAM, THIRUVANANTHAPURAM.

                STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR
    2.          HIGH COURT OF KERALA, ERNAKULAM.
                BY ADV.SMT.JAYAKUMARI(Party-In-Person)

                R2 BY SMT SEENA C, PUBLIC PROSECUTOR



     THIS        CRIMINAL   REVISION   PETITION   HAVING   COME   UP   FOR
ADMISSION ON 17.03.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 Crl.R.P.No.167 of 2022

                                         2

                                 ORDER

Dated this the 17th day of March, 2022

This revision is directed against concurrent findings of guilt

of the revision petitioner by Judicial First Class Magistrate Court-

XII, Thiruvananthapruam (for short 'the trial court') in

C.C.No.1108/2017 and Additional Court of Sessions-II,

Thiruvananthapuram (for short 'the appellate court') in

Crl.Appeal No.81/2020.

2. The revision petitioner is the accused. It is contended

by the learned counsel that the disputed cheque actually was

given to the husband of the complainant as security for a

transaction with him. The liability for which the cheque was

given as security was fully discharged but, the cheque was

retained and misusing it the prosecution was launched through

the wife. According to him, the cheque in question was not

supported by consideration and for that reason itself the

prosecution fails.

3. This Court has found from the impugned judgments

that issuance of a signed cheque is admitted by the revision

petitioner. Her only case was that it was given to the husband of Crl.R.P.No.167 of 2022

the complainant to discharge a totally different liability.

Accordingly she denied the transaction alleged by the

complainant and issuance of the cheque towards the liability

arisen from that. Position of law is now settled by the Apex

Court in Bir Singh v. Mukesh Kumar [2019 (1) KHC 774 (SC)]

that once voluntary issuance of cheque is admitted, the

presumptions under Sections 118(a) and 139 of Negotiable

Instruments Act, 1881 (for short 'NI Act') would be attracted in

favour of the complainant and the onus then will shift to the

revision petitioner to establish the defence set up in the case

that the disputed cheque given as security was misused in the

case on hand and prosecution in question was filed.

4. In the case on hand, going by the evidence adduced

by the revision petitioner, it is found that she has produced

Exts.D1 to D4 which are photocopies of FIR, charge sheet, reply

notice and acknowledgment card. The FIR and charge sheet are

relating to a case registered at the instance of the revision

petitioner against the 1st respondent. In what manner those

evidence are related to the transaction in question are not

revealed from the evidence tendered by the revision petitioner Crl.R.P.No.167 of 2022

before the trial court. In the above circumstances,

presumptions cannot be said to have been rebutted by the

revision petitioner. The courts below had also taken the view

correctly.

5. Moreover, the Apex Court has held in Bir Singh

(supra) that concurrent findings of the courts below, evenif

erroneous, cannot be interfered with in exercise of revisional

jurisdiction unless a jurisdictional error vitiating the judgment

assailed is pointed out by the revision petitioner. Having

considered the arguments advanced by the learned counsel for

the revision petitioner, this Court is not convinced that the

judgments assailed suffer for a jurisdictional error.

6. In the above circumstances, the revision is not liable

to be admitted. The impugned judgment directs the revision

petitioner to pay Rs.2,48,000/- as compensation to the

complainant and to undergo simple imprisonment for two

months, in case he defaults the payment. It is submitted by the

learned counsel that Rs.49,600/- was already deposited by her

before the trial court in compliance of the direction issued by the

appellate court while suspending the execution of sentence. If Crl.R.P.No.167 of 2022

that submission is true, the balance amount remains to be paid

as compensation is only Rs.1,98,400/-. In that event, this Court

is inclined to grant four months time for depositing the

compensation taking into account of the financial constraints

submitted as faced by the revision petitioner in the pandemic

scenario. The revision petitioner was granted four months' time

from this day for payment of the compensation to the

complainant and the trial court is directed not to proceed with

the execution of the sentence during the period. The revision

petitioner shall surrender before the trial court to serve the

substantive sentence of simple imprisonment till rising of the

court and obtain and file a memo from the complainant

evidencing the payment of the compensation to her, on or before

16.07.2022. In case of default, the trial court shall proceed to

execute the sentence.

Sd/-

MARY JOSEPH JUDGE

NAB