Varghese Joseph vs Musthafa Rawther
2026 Latest Caselaw 722 Ker

Kerala High Court

Varghese Joseph vs Musthafa Rawther on 23 January, 2026

                                                               2026:KER:5211
Crl.R.P.No.1561/2012
                                         -:1:-

                       IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                         THE HONOURABLE MR. JUSTICE G.GIRISH

        FRIDAY, THE 23RD DAY OF JANUARY 2026 / 3RD MAGHA, 1947

                            CRL.REV.PET NO. 1561 OF 2012

       AGAINST THE JUDGMENT DATED 22.03.2012 IN Crl.A NO.276 OF
2011 OF DISTRICT COURT & SESSIONS COURT, THODUPUZHA ARISING OUT
    OF THE JUDGMENT DATED 10.10.2011 IN ST NO.277 OF 2008 OF
        JUDICIAL MAGISTRATE OF FIRST CLASS, NEDUMKANDOM.

REVISION PETITIONER/APPELLANT/ACCUSED:

                   VARGHESE JOSEPH​
                   S/O.JOSEPH,
                   KOTTUPARAMBIL VEEDU,
                   NEDUMKANDOM KARA,
                   KALKOONTHAL VILLAGE.


                   BY ADVS.SRI.SHAJI THOMAS​
                           SRI.BINU PAUL​
                           SRI.T.V.VINU


RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:

        1          MUSTHAFA RAWTHER​
                   S/O.ASAINSA RAWTHER,
                   THAZATHETHIL VEEDU,
                   NEDUKANDOM KARA,
                   KALKOONTHAL VILLAGE,
                   PIN-685 553.(EXPIRED ON 29.05.2013)

        2          STATE OF KERALA​
                   REPRESENTED BY THE PUBLIC PROSECUTOR
                   HIGH COURT OF KERALA,
                   ERNAKULAM-682 031.

  ADDL.R3          MUHAMMADAMMA​
                   AGED 75 YEARS​
                   W/O LATE P.K.MUSTHAFA RAWTHER,
                                                           2026:KER:5211
Crl.R.P.No.1561/2012
                                      -:2:-

                   THAZHATHETHIL,
                   NOW RESIDING AT MUKKALI,
                   EDAKUNNAM (PO) KANJIRAPPALLY,
                   KOTTAYAM DISTRICT.

  ADDL.R4          ABDUL SHUKOOR T M,​
                   AGED 48 YEARS,​
                   S/O LATE P.K.MUSTHAFA RAWTHER THAZHATTETHIL,
                   NEDUMKANDOM (P.O)
                   IDUKKI DISTRICT.

  ADDL.R5          IRSHAD ​
                   AGED 45 YEARS​
                   S/O LATE P.K.MUSTHAFA RAWTHER THAZHATHETHIL,
                   ERUMELI (PO)
                   KOTTAYAM DISTRICT.

  ADDL.R6          FAIZAL T.M​
                   AGED 45 YEARS​
                   S/O LATE P.K.MUSTHAFA RAWTHER THAZHATHETHIL,
                   MUKKALI, EDAKUNNAM (P.O),
                   KANJIRAPPALLY,
                   KOTTAYAM DISTRICT.

  ADDL.R7          SHANIMOLE T.M​
                   AGED 51 YEARS​
                   D/O.LATE P.K.MUSTHAFA RAWTHER FATHIMA
                   BUILDING PATTACHIMUKKA,
                   CHANGANACHERRY,
                   KOTTAYAM DISTRICT. (ARE IMPLEADED AS ADDL R3 TO R7 AS
                   PER ORDER DATED 4/11/2013 IN CRL M A 7863/13 IN CRL RP
                   1561/2012).


                   BY ADV DR.PAULY MATHEW MURICKEN
                      SRI RENJIT GEORGE, SR. PUBLIC PROSECUTOR

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 21.01.2026, THE COURT ON 23.01.2026 PASSED THE FOLLOWING:
                                                             2026:KER:5211
Crl.R.P.No.1561/2012
                                      -:3:-


                                     ORDER

​ This revision is directed against the judgment rendered by the

Sessions Court, Thodupuzha, on 22.03.2012, in Crl.A.No.276/2011

confirming the conviction of the petitioner for the offence under Section

138 of the Negotiable Instruments Act, 1881, by the Judicial First Class

Magistrate Court, Nedumkandam, and awarding the modified sentence of

imprisonment till the rising of the Court and a fine of Rs.7,00,000/- with

a default clause of simple imprisonment for four months.

2.​ The first respondent had initiated criminal prosecution

against the petitioner in connection with the dishonour of a cheque dated

23.10.2007 for an amount of Rs.7,00,000/-, and the non-payment of the

aforesaid cheque amount, despite the receipt of legal notice. According

to the first respondent, the aforesaid amount of Rs.7,00,000/- was

advanced to the petitioner on 23.07.2007, in connection with a

lease/pledge transaction. At that time, the petitioner is said to have

executed the impugned cheque as well as Ext P6 agreement undertaking

to repay the aforesaid amount of Rs.7,00,000/- on or before 23.10.2007.

The first respondent is said to have presented the cheque for collection

after 23.10.2007 but it was dishonoured due to insufficiency of funds in

the account of the petitioner on 03.11.2007. Thereafter, the first 2026:KER:5211

respondent issued the statutory notice on 15.11.2007, which was

accepted by the petitioner on 16.11.2007. Since the amount of

Rs.7,00,000/- was not paid within the period of 15 days mentioned in the

above notice, the first respondent launched the criminal prosecution

against the petitioner.

3.​ Heard the learned counsel for the petitioner, learned counsel

for additional respondents 3 to 7, who were impleaded as the legal

representatives of the deceased first respondent and the learned Public

Prosecutor representing the State of Kerala.

4.​ The defence taken by the petitioner is that Ext P1 cheque on

the basis of which the criminal prosecution has been launched had not

been issued in discharge of a legally enforceable debt or liability.

According to the petitioner, there was a property transaction with the

first respondent in connection with the purchase of 10 Acres of land

which belonged to the first respondent. It is stated that out of the

aforesaid 10 Acres, the first respondent was having title only over 5.60

Acres of land. Ext P1 cheque, according to the petitioner, was executed

and issued by him towards security for payment of the balance sale

consideration in connection with the remaining 4.40 Acres of land for

which the first respondent was not having title. According to the 2026:KER:5211

petitioner, the aforesaid amount was intended to be paid only when the

entire extent of 10 Acres was measured out and handed over to him.

Thus, it is contended by the petitioner that Ext P1 cheque is devoid of

consideration and hence the criminal prosecution launched against him,

is prima facie unsustainable.

5.​ The learned Magistrate, in the impugned judgment dated

10.10.2011, had dealt with in detail the evidence adduced by the first

respondent through the oral testimony of PW1 and the documents

marked as Exts P1 to P6, and that of the petitioner through the oral

testimonies of DW1 to DW5, and the documents marked as Exts D1 to

D11. After an elaborate ratiocination of the evidence on record, the

learned Magistrate concluded that the defence case put forward by the

petitioner does not have the support of even Ext D1 agreement executed

between the parties in connection with the sale transaction. The learned

Magistrate further held that the contention of the petitioner against the

contents of Ext P6 deed cannot be accepted. It was further found by the

learned Magistrate that the challenge raised by the petitioner against the

purport of Ext P6 deed and Ext P1 cheque cannot survive the scrutiny of

law.

2026:KER:5211

6.​ The aforesaid aspects of the evidence on record has been

dealt with in detail in the judgment rendered by the Appellate Court as

well. After a re-appraisal of the entire evidence, the learned Sessions

Judge, concurred with the findings of the learned Magistrate, and held

that the first respondent had successfully established the requisite

particulars constituting the commission of offence under Section 138 of

N.I. Act by the petitioner. The concurrent findings of the courts below in

the above regard, cannot be interfered with by this Court in exercise of

its revisional jurisdiction. In Sanjabij Tari v. Kishore S Borcar

[2025(6) KHC 250 SC] the Hon'ble Supreme Court, while dealing with

the limitations in the exercise of revisional jurisdiction of the High Court,

held as follows:

"27. It is well settled that in exercise of revisional jurisdiction, the High Court does not, in the absence of perversity, upset concurrent factual findings [See: Bir Singh (supra)]. This Court is of the view that it is not for the Revisional Court to re-analyse and re-interpret the evidence on record. As held by this Court in Southem Sales & Services and Others v. Sauermilch Design and Handels GmbH, it is a well-established principle of law that the Revisional Court will not interfere, even if a wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error.

28. Consequently, this Court is of the view that in the absence of perversity, it was not open to the High Court in the present case, in 2026:KER:5211

revisional jurisdiction, to upset the concurrent findings of the Trial Court and the Sessions Court."

7.​ As far as the present case is concerned, it is not possible to

say that the courts below had dealt with the evidence on record in a

manner which could be termed as perverse or in blatant violation of the

principles of law. There is absolutely no reason to think that the courts

below relied on evidence which ought not have been relied, or eschewed

the evidence which ought to have been accepted. The decisions are

rendered by the courts below vide the impugned judgments upon sound

judicial reasoning. Therefore, the prayer of the petitioner to set aside

the verdicts of the courts below, is devoid of merit.

In the result, the revision petition is hereby dismissed.

(Sd/-) G. GIRISH, JUDGE

DST