Jaleel U.V. Vs Muhammed Thalikkandy

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Crl.R.P.No.1050/2012

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE G.GIRISH

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THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947

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CRL.REV.PET NO. 1050 OF 2012

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AGAINST THE JUDGMENT DATED 02.01.2012 IN Crl.A NO.58 OF

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2007 OF SESSIONS COURT, THALASSERY CONFIRMING THE CONVICTION
AND SENTENCE PASSED BY THE JUDICIAL MAGISTRATE OF FIRST
CLASS,KUTHUPARAMBA DATED 12.01.2007 IN ST NO.5806 OF 2003

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REVISION PETITIONER/APPELLANT/ACCUSED:

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JALEEL U.V., S/O.MAMMOOTTY,
AGED 35 YEARS, KANDAMKUNNU AMSOM,
KAITHERI DESOM, P.O.KAITHERI,
THALASSERY TALUK, KANNUR DISTRICT.

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BY ADVS.

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SRI.M.SASINDRAN
SRI.SATHEESHAN ALAKKADAN

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RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:

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1.MUHAMMED THALIKKANDY, S/O.HUSSAIN, AGED 45 YEARS, DARUL HAMAN, KAITHERI, KANDAMKUNNU, KAITHERI,

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P.O.NIRMALAGIRI, KANNUR DISTRICT - 670 001.

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

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BY ADV CIBI THOMAS

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SRI.SANGEETHARAJ.N.R, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 01.04.2025, THE COURT ON 03.04.2025 DELIVERED THE
FOLLOWING:

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O R D E R

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Aggrieved by the judgment rendered by the Sessions Court, Thalassery on 02.01.2012 in Crl.Appeal No.58/2007 confirming the conviction and sentence of the petitioner for the commission of offence under Section 138 of the Negotiable Instruments Act, the petitioner is here with this revision.

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The first respondent had filed the complaint before the Judicial First Class Magistrate Court, Koothuparamba alleging that a cheque dated 30.04.2003, executed and issued by the petitioner for an amount of Rs.1,40,000/-, towards repayment of the amount due from him, was dishonoured due to insufficiency of funds in his account, and that despite statutory notice having been issued, he did not care to make payment of the cheque amount. In the above complaint, which was taken on to file as S.T.C No.5806/2003, the complainant/first respondent and one witness were examined as PW1 and PW2 and six documents were marked as Exts.P1 to P6 from the part of the complainant. The petitioner did not opt to adduce any defence evidence. After the evaluation of the aforesaid evidence, the learned Magistrate found the petitioner guilty of the offence under Section 138

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of the Negotiable Instruments Act and convicted and sentenced him to simple imprisonment till the rising of the court and payment of compensation Rs.1,40,000/- with a default clause of simple imprisonment for six months. The Appellate Court, after re-appraisal of the entire evidence, concurred with the findings of the learned Magistrate, and dismissed the appeal. It is the aforesaid judgment of the Appellate Court which is under challenge in this revision.

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Heard the learned counsel for the petitioner and the learned counsel for the first respondent.

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The main challenge raised by the petitioner before the courts below against the prosecution in the present case was that the impugned cheque was admittedly issued in discharge of a time barred debt, and hence the offence under section 138 of the Negotiable Instruments Act will not be attracted in the facts and circumstances of the case. The aforesaid challenge of the petitioner was rightly repelled by the Trial Court as well as the Appellate Court by applying the law laid down by a Division Bench of this Court in K.K.Ramakrishnan v. Parthasarathi and Others [2003 (2) KLT 613] . There is absolutely no anomaly or impropriety in the findings of the Trial Court and the Appellate Court that a prosecution under Section 138 of the

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Negotiable Instruments Act is maintainable even if the cheque had been issued towards the discharge of a time barred debt.

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The learned counsel for the petitioner would argue that the complainant/first respondent had not revealed before the Trial Court either by way of pleadings or by evidence as to the exact date when he had handed over the impugned cheque to the petitioner. According to the learned counsel for the petitioner, both the courts below failed to take note of the above omission on the part of the de facto complainant. I find no merit in the above challenge raised by the petitioner. It is seen from the records that the first respondent had given statement before the Trial Court as PW1 that the petitioner had obtained an amount of Rs.1,89,000/- from him to improve the business of the petitioner under the promise that the first respondent would also be included as a partner. According to the first respondent, the amount was so obtained in the year 1991. It is further stated by the first respondent before the Trial Court that the petitioner did not include him as a business partner as agreed or return the amount borrowed from him. Thereafter, the petitioner is said to have executed

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and issued the cheque dated 30.04.2003 towards payment of the amount of Rs.1,40,000/- which was agreed to be paid as per the terms

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of a mediation between the parties. Thus, it could be seen that the requisite particulars relating to the transaction between the petitioner and the first respondent leading to the execution and issuance of Ext.P1 cheque were stated by the first respondent before the Trial Court. That being so, the omission in mentioning the exact date when the cheque was handed over to the first respondent cannot be said to be a serious lapse affecting the credibility of the case of the first respondent.

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On going through the case records and the judgments rendered by the Trial Court as well as the Appellate Court, I am not able to find any material irregularity or legal impropriety warranting the interference of this Court in revision.

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The proposition of law upon the scope of interference in

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revision, is well settled by a catena of decisions of the Hon'ble Supreme Court.

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In State of Kerala v. Jathadevan Namboodiri : AIR 1999

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SC 981 , the Hon'ble Supreme Court held as follows:

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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 Sessions Judge in

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appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.

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In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao

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Phalke & Anr : 2015 (3) SCC 123 , it has been held by the Hon'ble

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Supreme Court as follows:

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Revisional power of the court under Sections 397 to 401 of Cr.PC 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.

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Referring the above dictums, the Apex Court has observed in

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Kishan Rao v. Shankargouda : 2018 (8) SCC 165 as follows:

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Another judgment which has also been referred to and relied by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123. This Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the

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ground that another view is possible. Following has been laid down in paragraph 14:

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”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.”

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

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say that the findings of the Trial Court and the Appellate Court are untenable in law, glaringly unreasonable or grossly erroneous. Nor could it be said that the decisions of the courts below are based on unacceptable evidence, or that admissible evidence were ignored for arriving at the findings against the petitioner. The sentence awarded

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by the courts below is also perfectly in order. Therefore, I am of the

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view that the challenge raised by the petitioner against the verdicts of

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the courts below, is devoid of merit.

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In the result, the revision petition stands dismissed.