Kerala High Court
James Abraham vs The State Of Kerala on 11 March, 2025
2025:KER:20460
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 11TH DAY OF MARCH 2025 / 20TH PHALGUNA, 1946
CRL.REV.PET NO. 1557 OF 2012
AGAINST THE JUDGMENT DATED 17.12.2011 IN Crl.A NO.268
OF 2010 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC),
FAST TRACK COURT-III, PATHANAMTHITTA ARISING OUT OF THE
JUDGMENT DATED14.09.2010 IN ST NO.1137 OF 2009 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II,PATHANAMTHITTA
REVISION PETITIONER/APPELLANT/ACCUSED:
JAMES ABRAHAM
S/O.ABRAHAM, KOCHUMANGATTU MANNIL, VAKAYAR P.O.,
KONNY V.KOTTAYAM VILLAGE, PATHANAMTHITTA.
BY ADV SRI.S.SHANAVAS KHAN
RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT:
1 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
2 K.M.KOSHY
S/O.K.K.MATHEW, KANICHERIYIL ANN MATHEW VILLA,
PANDALAM THEKKEKARA VILLAGE, ADOOR TALUK,
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Crl.R.P.No.1557 of 2012
PATHANAMTHITTA DISTRICT-689645.
OTHER PRESENT:
Smt. C.Seena- PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
11.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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3
Crl.R.P.No.1557 of 2012
"CR"
K.V.JAYAKUMAR, J.
--------------------------
Crl.R.P No.1557 of 2012
-----------------------------
Dated this the 11th day of March, 2025
ORDER
This criminal revision petition is preferred
challenging the concurrent findings of conviction
entered and the sentence imposed on the revision
petitioner for the offence punishable under Section
138 of the Negotiable Instruments Act (for short,
'the Act'), in Criminal Appeal No.268 of 2010 on
the files of the Additional District and Sessions
(Ad-hoc) Fast Track Court-III, Pathanamthitta. The
above appeal was preferred challenging the judgment
finding that the revision petitioner is guilty of
the said offence, passed in S.T.No.1137 of 2009 on
the files of the Judicial First Class Magistrate
Court-II, Pathanamthitta.
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2. The trial court sentenced the revision
petitioner to undergo imprisonment till the rising
of court and to pay a compensation of Rs.2,00,000/-
and in default, to undergo simple imprisonment for
three months. The appellate court, as per the
impugned judgment, dismissed the appeal.
3. The learned counsel for the revision
petitioner reiterated the contentions which were
raised before the courts below and got rejected
concurrently. The contentions raised before me are
also urging for re-appreciation of evidence, which
is not permissible under the revisional
jurisdiction unless any kind of perversity is found
in the appreciation of evidence.
4. It is well settled that the revisional
court cannot act as an appellate court and the
power of the revisional court under Sections 397 to
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401 Cr.P.C cannot be equated with the power of an
appellate court. In State of Kerala v. Puttumana
Illath Jathavedan Namboodiri [(1999) 2 SCC 452 =
1999 SCC (Cri) 275], the Honourable Supreme Court
held thus:
"5. ... In its revisional jurisdiction, the
High Court can call for and examine the
record of any proceedings for the purpose of
satisfying itself as to the correctness,
legality or propriety of any finding,
sentence or order. In other words, the
jurisdiction is one of supervisory
jurisdiction exercised by the High Court for
correcting miscarriage of justice. But the
said revisional power cannot be equated with
the power of an appellate court nor can it
be treated even as a second appellate
jurisdiction. Ordinarily, therefore, it
would not be appropriate for the High Court
to reappreciate the evidence and come to its
own conclusion on the same when the evidence
has already been appreciated by the
Magistrate as well as the Sessions Judge in
appeal, unless any glaring feature is
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brought to the notice of the High Court
which would otherwise tantamount to gross
miscarriage of justice. On scrutinizing the
impugned judgment of the High Court from the
aforesaid standpoint, we have no hesitation
to come to the conclusion that the High
Court exceeded its jurisdiction in
interfering with the conviction of the
respondent by reappreciating the oral
evidence. ..."
5. In Sanjaysinh Ramrao Chavan v. Dattatray
Gulabrao Phalke and Others [(2015) 3 SCC 123 =
(2015) 2 SCC (Cri) 19], the Honourable Supreme
Court held thus:
"14. ... 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. 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
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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."
6. This Court reiterated the above legal
principle in Saji Charivukala Puthenveedu v. State
of Kerala [2023(7) KHC 381], Kunjumon P.K. v.
Mathew P.K [2022 KHC 7318] and Shabeer M. v.
Anitha Bajee & Another [2022(6) KHC 704].
7. The courts below had concurrently found
that the complainant had successfully discharged
initial burden of proving execution and issuance of
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the cheque; whereas the revision petitioner has
failed to rebut the presumption under Section
118(a) and 139 of the Act, which stood in favour of
the complainant. So also, it is found that the
debt due to the complainant was a legally
enforceable debt and the cheque was duly executed
and issued in discharge of the said debt.
8. The revision petitioner failed to point out
any kind of perversity in the appreciation of
evidence. I do not find any kind of illegality or
impropriety in the said findings or perversity in
the appreciation of evidence, from which the above
findings had been arrived. Therefore, I am not
inclined to re-appreciate entire evidence and I
confirm the concurrent findings of conviction.
9. The learned counsel for the revision
petitioner submits that, challenge under this
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revision is confined to sentence only and the
sentence imposed on the revision petitioner is
disproportionate with the gravity and nature of the
offence. He further submits that the revision
petitioner is willing to pay the compensation as
ordered by the court below; but he is unable to
raise the said amount forthwith due to paucity of
funds. But he is ready to pay the compensation
within six months.
10. The Apex Court in Raj Reddy Kallem v. State
of Haryana [2024(3) KHC 485] and Damodar S. Prabhu
v. Sayed Babalal H. [2010(2) KHC 428] and Kaushalya
Devi Massand v. Roopkishore Khore [2011 KHC 281]
that, it is the compensatory aspect of remedy which
should be given priority over the punitive aspect
with regard to the offence of dishonour of cheques.
This Court reiterated the aforementioned legal
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principles in Aaremsky Sports & Fitness v. P.A.
Sadanandam [2024 KHC 111], Sasikumar v. Ushadevi
[2023(6) KHC 444], Jayaprakash M.N. v. S.R. Madhu &
Another [2013 KHC 3707] and Vijayakumar v. M.T.
Vijayan & Another [2010(4) KHC 582].
11. Having regard to the nature and gravity of
the offence; in the light of the decisions quoted
above and submissions made at the Bar expressing
willingness to pay the compensation within six
months; I am inclined to grant six months' time to
pay the compensation.
In the result,
(i) The criminal revision petition is
allowed in part.
(ii) The sentence of imprisonment
till the rising of the court is
maintained.
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(iii) The compensation awarded and
the default sentence are maintained.
Needless to say, if any part of the
compensation is deposited, as per the
orders of this Court or that of the
appellate court, such amount shall be
taken into consideration by the trial
court.
(iv) The trial court shall execute the
order in the modified form.
(v) The revision petitioner/accused
shall surrender before the trial
court on or before 15.09.2025 to
receive the sentence.
Sd/-
K.V.JAYAKUMAR
JUDGE
Scl/
