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2025 DIGILAW 551 (KER)

JAMES ABRAHAM S/o. ABRAHAM v. THE STATE OF KERALA

2025-03-11

K.V.JAYAKUMAR

body2025
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. 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 to401 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. 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 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 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 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 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 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. 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. 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. (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.