Kerala High Court
Sumathi vs State Of Kerala on 14 March, 2025
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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. 2054 OF 2012
AGAINST THE JUDGMENT DATED 03.05.2012 IN Crl.A No.374
OF 2011 OF III ADDITIONAL SESSIONS COURT, KOLLAM ARISING OUT
OF THE JUDGMENT DATED 18.07.2011 IN CC NO.260 OF 2009 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOTTARAKKARA
REVISION PETITIONER/APPELLANT/ACCUSED:
SUMATHI
AGED 48 YEARS
PARAVILA PUTHENN VEEDU, POOOVATTOOR KIZHAKKU MURI
KALAYAPURAM VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT
BY ADV SRI.K.V.ANIL KUMAR
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTORHIGH COURT OF
KERALA, ERNAKULAM - 682 031.
2 THOMAS JOHN SO.JOHN
PUTHEN PURACKAL HOUSE, MAKKULAM KIZHAKKE MURI
PIRAVANTHOOR VILLAGE, RANNI, PATHANAPURAM TALUK
KOLLAM DISTRICT. 689 695.
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Crl.R.P.No.2054 of 2012
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.2054 of 2012
K.V.JAYAKUMAR, J.
--------------------------
Crl.R.P No.2054 of 2012
-----------------------------
Dated this the 14th day of March, 2025
ORDER
This criminal revision petition is preferred
impugning the judgment in Criminal Appeal No.374
of 2011 on the files of the Additional Sessions
Court-III, Kollam. The above appeal was preferred
challenging the judgment finding that the revision
petitioner is guilty of the offence under Section
138 of the Negotiable Instruments Act (for short
'the Act'), passed in C.C.No.260 of 2009 on the
files of the Judicial First Class Magistrate Court-
I, Kottarakara.
2. As per the impugned judgment, the revision
petitioner is sentenced to undergo simple
imprisonment for three months and to pay a fine of
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Rs.1,60,000/- and in default, to undergo simple
imprisonment for two months.
3. The appellate court, as per the impugned
judgment, dismissing the appeal, modified and
reduced the sentence to imprisonment till rising of
the Court and to pay fine of Rs.1,50,000/- 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
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.
5. It is well settled that the revisional
court cannot act as an appellate court and the
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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
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
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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
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. The same observation was reiterated by this
Court in Saji Charivukala Puthenveedu v. State of
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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
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
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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 fine 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 fine 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
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regard to the offence of dishonour of cheques. The
same observation has been reiterated by this Court
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].
12. 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 fine within six months; I am
inclined to grant six months' time to pay the fine.
In the result,
(i) The criminal revision
petition is allowed in part.
(ii) The sentence of imprisonment
till rising of the court is
maintained.
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(iii) The fine imposed and the
default sentence are maintained.
Needless to say, if any part of the
fine is paid, 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 16.09.2025 to
receive the sentence.
Sd/-
K.V.JAYAKUMAR
JUDGE
Scl/
