Assainar And Another vs Sakeena And Another
2023 Latest Caselaw 9722 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
 WEDNESDAY, THE 13TH DAY OF SEPTEMBER 2023 / 22ND BHADRA, 1945
                  CRL.REV.PET NO. 1644 OF 2011
    AGAINST THE JUDGMENT DATED 23.02.2010 IN CRA 236/2009 OF
          ADDITIONAL DISTRICT COURT (ADHOC)-I, MANJERI

  AGAINST THE ORDER DATED 03.07.2009 IN MC 54/2007 OF JUDICIAL
               MAGISTRATE OF FIRST CLASS ,NILAMBUR
REVISION PETITIONERS/APPELLANTS/RESPONDENTS:

    1     ASSAINAR,
          S/O. SAIDALI,
          PUTHIYATH HOUSE, KARULAI P.O., NEAR GOVERNMENT
          HOSPITAL, NILAMBUR TALUK, MALAPPURAM DISTRICT.

    2     SAFIYA,
          W/O.SAIDALI,
          PUTHIYATH HOUSE, KARULAI P.O.,
          NEAR GOVERNMENT HOSPITAL, NILAMBUR TALUK,
          MALAPPURAM DISTRICT.

          BY ADV SRI.U.K.DEVIDAS


RESPONDENTS/RESPONDENTS/PETITIONER AND STATE:

    1     SAKEENA,
          D/O. BEERAN,
          ARAKKALAKATH HOUSE, ERANGHIMANGAD P.O.,
          AKAMPADAM VILLAGE - 679 343.

    2     STATE OF KERALA REP.BY THE
          SUB INSPECTOR OF POLICE, MELATTUR BY GOVERNMENT
          PLEADER, HIGH COURT OF KERALA, COCHIN-31.

          BY ADV SRI.P.VENUGOPAL 108692


OTHER PRESENT:

          PP SMT PUSHPALATHA

      THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.R.P.No.1644/2011

                                   -:2:-




                 Dated this the 13th day of September,2023

                              ORDER

The revision petition is filed challenging the

concurrent findings of the Court of the Judicial

Magistrate of the First Class,Nilambur(Trial Court) in

M.C.No.54/2007, and the Court of the Additional

Sessions Judge(Adhoc)-I, Manjeri(Appellate Court) in

Crl.A. No.236/2009. The revision petitioners were the

respondents and the first respondent was the

petitioner before the Trial Court.

2. The skeletal facts relevant for the

determination of the revision petition are as follows:

The first respondent had filed M.C.No.54/2007(in

short, 'petition') before the Trial Court, inter alia,

asserting that she is the legally wedded wife of the first

revision petitioner and the second revision petitioner is

the mother of the first revision petitioner. The first Crl.R.P.No.1644/2011

revision petitioner and the first respondent have a

daughter born in their wedlock. At the time of their

marriage, the first respondent's father had entrusted

an amount of Rs.50,000/- and 30 sovereigns of gold

ornaments to the first revision petitioner as the first

respondent's share in her parental properties. The said

amount and the gold ornaments were misappropriated

by the revision petitioners for the first revision

petitioner to go abroad. Even though the first

respondent demanded for the return of the money and

the gold ornaments, the same was refused by the

revision petitioners. The revision petitioners meted out

domestic violence on the first respondent. In July,

2007, the revision petitioners expelled the first

respondent from the shared household. From the said

day onwards, the first respondent and the child are

living in the first respondent's parental home. The first

respondent and her child do not have the means to Crl.R.P.No.1644/2011

maintain themselves. The first respondent and the

child require Rs.3,000/- & 1,500/- per month,

respectively, for their monthly maintenance allowance.

Hence, the petition.

3. The revision petitioners filed their counter

statement, denying the allegations in the petition. They

have, inter alia, contended that the first respondent is

living separately from the first revision petitioner

without any sufficient reason or cause. The revision

petitioners are prepared to provide an alternative

accommodation for the first respondent. Hence, the

petition may be dismissed.

4. The first respondent and two witnesses were

examined as PWs 1 to 3 and the second revision

petitioner was examined as CPW1.

5. The Trial Court, after analysing the evidence

and materials on record, by its order dated 03.07.2009

allowed the complaint by ordering the revision Crl.R.P.No.1644/2011

petitioners not to cause any domestic violence against

the first respondent, to pay the first respondent and

the child maintenance at the rate of Rs.2,500/- and

Rs.1,000/- per month from the date of petition and the

first revision petitioner to pay an amount of

Rs.2,36,000/- to the first respondent towards the value

of the gold ornaments and a further amount of

Rs.50,000/-.

6. Aggrieved by the said order, the revision

petitioners filed Crl.A.No.236/2009 before the

Appellate Court.

7. The Appellate Court, after re-appreciating the

evidence and the materials on record, by the impugned

judgment, dismissed the appeal confirming the order

passed by the Trial Court.

8. It is these concurrent order and judgment

passed by the courts below, that are assailed in this

revision petition.

Crl.R.P.No.1644/2011

9. Even though the revision petition was filed as

early as on 04.04.2011, this Court has not admitted the

revision petition and has not passed any order staying

the operation of the impugned order passed by the

Trial Court.

10. Heard; Sri. U.K. Devidas, the learned counsel

appearing for the revision petitioners, Sri. P.

Venugopal, the learned counsel appearing for the first

respondent and Smt. Pushpalatha, the learned Public

Prosecutor appearing for the second respondent.

11. The point is whether there is any illegality,

impropriety or irregularity in the order and judgment

passed by the courts below .

12. Before delving into the merits of the order

and judgment, it is to be borne in mind that the

revisional jurisdiction of this Court under Sections 397

to 401 of the Code of Criminal Procedure, 1973 (in

short, 'Cr.P.C.') is very narrow and supervisory in Crl.R.P.No.1644/2011

nature.

13. It is well settled in a host of judicial

pronouncements that the High Court shall not exercise

its revisional jurisdiction, unless the order is so

perverse, patently illegal and there is total

non-consideration of the relevant materials on record.

14. It is apposite to extract the exposition of law

in the above regard by the Hon'ble Supreme Court in

Sanjaysinh Ramroa Chavan v. Dattatray Gulabrao

Phalke & Ors.[(2015) 3 SCC 123], wherein it has been

held as follows:

"14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible.

Crl.R.P.No.1644/2011

The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."

15. Keeping in mind the above principles of law,

let in examine the revision petition.

16. The first respondent's case in the petition

that she is the legally wedded wife of the first revision

petitioner. At the time of her marriage with the first

revision petitioner, an amount of Rs.50,000/- and 30

sovereigns of gold ornaments were entrusted to the

revision petitioners as her share in her parental

properties. The gold and the money were Crl.R.P.No.1644/2011

misappropriated by the revision petitioners for the

purpose of the first revision petitioner going abroad.

In July, 2007, the revision petitioners drew away the

first respondent from the shared household. She does

not have the means to maintain herself and her child.

Hence, the first respondent is entitled for an order for

return of money, gold ornaments and maintenance.

17. The revision petitioners refuted the

allegations by filing a counter statement.

18. The first respondent examined herself and

two other witnesses as PWs 1 to 3, who deposed in line

with the assertions in the petition.

19. In order to prove the defence, the second

revision petitioner was examined as CPW1.

20. The Trial Court, after examining the

pleadings and materials on record, particularly, the

oral testimonies of PWs 1 to 3, arrived at the

conclusion that the first respondent's father had Crl.R.P.No.1644/2011

entrusted an amount of Rs.50,000/- to the first revision

petitioner and the first revision petitioner had

misappropriated 29½ sovereigns of gold ornament,

the value of which was fixed at Rs.2,36,000/-.

Similarly, it was found that the first respondent and the

child were driven away from the shared household and

they did not have the means to maintain themselves,

despite the first revision petitioner having the means to

maintain her.

21. Consequently, the Trial Court allowed the

petition by directing the first revision petitioner to pay

the first respondent and the child Rs.2,500/- & 1,000/-

per month towards monthly maintenance allowance.

Also, the Trial Court directed the first revision

petitioner to pay the first respondent an amount of

Rs.2,36,000/- towards the value of gold ornaments and

to return of Rs.50,000/- that was entrusted at the time

of marriage.

Crl.R.P.No.1644/2011

22. The Appellate Court, after re-appreciating the

pleadings and materials on record, also arrived at the

same conclusion that the case put forth by the first

respondent was believable and acceptable and

resultantly, dismissed the appeal, confirming the order

passed by the Trial Court.

23. On an anxious consideration of the impugned

order and judgment passed by the courts below,

pursuing the records and hearing the respective

counsel appearing for the parties, I do not find any

illegality, impropriety or irregularity in the concurrent

findings of the courts below, in rendering the impugned

judgment and order, which has been rendered after

appreciating and accepting the oral testimonies of PWs

1 to 3. The first respondent has successfully

established her case on the basis of preponderance of

probability, and I do not find any valid ground to take a

contrary view.

Crl.R.P.No.1644/2011

The revision petition is meritless and is

consequently, dismissed.

Sd/-

                                         C.S.DIAS,JUDGE

DST/13.09.23                                              //True copy//

                                                          P.A.To Judge