Kerala High Court
D.Gopakumar vs State Of Kerala on 14 March, 2025
2025:KER:21899
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 14TH DAY OF MARCH 2025 / 23RD PHALGUNA, 1946
CRL.REV.PET NO. 662 OF 2012
AGAINST THE JUDGMENT DATED 23.01.2012 IN Crl.A NO.635
OF 2008 OF ADDITIONAL SESSIONS COURT (FAST TRACK III),
THIRUVANANTHAPURAM ARISING OUT OF THE JUDGMENT DATED
4.7.2008 IN CC NO.141 OF 2006 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -VI, NEYYATTINKARA
REVISION PETITIONER/APPELLANT/ACCUSED:
D.GOPAKUMAR
S/O DIVAKARAN, CHAMAVILA PUTHEN VEEDU,
SIVALAYAKONAM, BHAGAVATHI NADA P.O, PALLICHAL
VILLAGE, THIRUVANANTHAPURAM.
BY ADVS.
SRI.G.P.SHINOD
SRI.MANU V.
RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR AT THE HIGH
COURT OF KERALA AT ERNAKULAM.
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2
Crl.R.P.No.662 of 2012
2 SASIKUMAR
S/O KUTTAN NADAR, SURENDRA VILASOM, VADAKKEVILA,
BALARAMAPURAM, THIRUVANANTHAPURAM.
BY ADV SRI.K.P.SUJESH KUMAR
OTHER PRESENT:
Sri. Ranjit George-PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
14.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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3
Crl.R.P.No.662 of 2012
K.V.JAYAKUMAR, J.
--------------------------
Crl.R.P No.662 of 2012
-----------------------------
Dated this the 12th day of March, 2025
ORDER
This criminal revision petition is preferred
impugning the judgment of the learned Additional
Sessions Judge (Fast Track Court-III),
Thiruvananthapuram in Crl.Appeal No.635 of 2008. The
revision petitioner was the accused in C.C.No.141 of
2006 on the file of the Judicial First Class Magistrate
Court-VI, Neyyattinkara for the offence punishable
under Section 138 of the Negotiable Instruments Act
[hereinafter referred to as 'the Act']. The 2nd
respondent is the complainant. The appeal; Crl.A.No.635
of 2008 was preferred challenging the judgment
finding that the revision petitioner is guilty of
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the said offence, passed in C.C.No.141 of 2006.
2. The trial court sentenced the revision
petitioner to undergo simple imprisonment for a
period of three months and to pay a fine of
Rs.52,000/- and in default, to undergo simple
imprisonment for two months.
3. The appellate court, as per the impugned
judgment, modified and reduced the sentence to
imprisonment till rising of the Court and to pay
compensation of Rs.52,000/- and in default, to
undergo simple imprisonment for two months.
4. The learned counsel for the revision
petitioner reiterated the contentions which were
raised before the courts below and got rejected.
The contentions raised before me are also urging
for re-appreciation of evidence, which is not
permissible under the revisional jurisdiction
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unless any kind of perversity is found in the
appreciation of evidence.
5. 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
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
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Magistrate as well as the Sessions Judge in
appeal, unless any glaring feature is
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. ..."
6. In Sanjaysinh Ramrao Chavan v. Dattatray
Gulabrao Phalke [(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
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
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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."
7. 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].
8. The courts below had concurrently found
that the complainant had successfully discharged
initial burden of proving execution and issuance of
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
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and issued in discharge of the said debt.
9. 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
appreciation of evidence, from which the above
findings had been arrived. Therefore, I am not
inclined to re-appreciate the entire evidence and I
confirm the concurrent findings of conviction.
10. The learned counsel for the revision
petitioner submits that, challenge under this
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
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raise the said amount forthwith due to paucity of
funds. But he is ready to pay the compensation
within six months.
11. 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] held 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
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. Madu &
Another [2013 KHC 3707] and Vijayakumar v. M.T.
Vijayan & Another [2010(4) KHC 582].
12. Having regard to the nature and gravity of
the offence; in the light of the decisions quoted
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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.
(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
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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/
