P. G. Rajeev v. Sree Gokulam Chits Finance Co. (P) Ltd. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 13TH DAY OF DECEMBER 2013/22ND AGRAHAYANA, 1935** **Crl.Rev.Pet.No. 2398 of 2013 ()** **-------------------------------Crl.A 243/2009 of ADDITIONAL SESSIONS JUDGE-I, THIRUVANANTHAPURAM DATED 31-01-2013 ST 861/2008 of JUDICIAL FIRST CLASS MAGISTRATE -X, THIRUVANANTHAPURAM DATED 17-03-2009** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **--------------------------------------------------------------------------------** **P.G.RAJEEV S/O.PADAMANBHAN NAIR, PADMA GEETHAM, NILAMA OOKKODE.P.O, THIRUVANANTHAPURAM.** **BY ADV. SRI.S.MOHAMMED AL RAFI** ## **COMPLAINANT(S)/RESPONDENTS/COMPLAINANT & STATE:** **----------------------------------------------------------------------------------------------** **1. M/S SREE GOKULAM CHITS FINANCE CO.(P) LTD. COLLECTION CENTRE, ATTUKAL SHOPPING COMPLEX, EAST FORT THIRUVANANTHAPURAM-33.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.K.M.SATHYANATHA MENON R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ds** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** ## **K.HARILAL, J.** ## **Crl.R.P. No.2398 of 2013** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 13[th] day of December, 2013 ## **O R D E R** The revision petitioner is the accused in S.T.No.861/08 on the files of the Judicial First Class Magistrate's Court-X, Thiruvananthapuram. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I.Act'), on a complaint filed by the respondent herein. According to the complaint, the complainant is a chitty company and in discharge of a debt legally liable to pay to the complainant in a chitty transaction the accused issued a cheque for Rs.1,82,000/- in favour of the complainant. But, when he presented the cheque for encashment, the same was dishonoured and returned for want of sufficient funds. Though he had caused to issue a lawyer's notice, the Crl.R.P.No.2398 of 2013 2 revision petitioner did not send a reply nor did he pay off the cheque amount. Thus, the revision petitioner committed the offence punishable under Section 138 of the N.I. Act. 2. After trial, the learned Magistrate found the revision petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for 3 months and to pay a fine of Rs.1,82,000/- and in default, to undergo simple imprisonment for one month. If the fine amount is remitted or recovered, the same shall be given to the complainant as compensation under Section 357(3) of the Cr.P.C. 3. Though he had preferred Crl. Appeal No.243/09 before the Additional Sessions Court-I, Thiruvananthapuram, when the case was taken up for hearing, the learned counsel appearing for the revision petitioner before the appellate court submitted that he did not intend to challenge the verdict of guilty on merits and Crl.R.P.No.2398 of 2013 **==> picture [7 x 10] intentionally omitted <==** the challenge under the appeal is confined to sentence only. The learned counsel for the revision petitioner appearing before the appellate court further prayed for modification of the sentence by avoiding the deterrent punishment imposed by the court below. In view of the submissions made by the learned counsel, who appeared for the revision petitioner before the appellate court, the learned Sessions Judge, without re-appreciating the evidence on record on merits, considered the sentence portion alone and modified the sentence accordingly. The substantive sentence of imprisonment for 3 months was reduced and modified to simple imprisonment for one day till rising of the court and sustained the rest of the sentence as such, without any modification. This Revision Petition is filed challenging the legality, propriety and correctness of the impugned judgment. 4. The learned counsel for the revision petitioner submits that the findings of conviction and sentence are Crl.R.P.No.2398 of 2013 **==> picture [7 x 9] intentionally omitted <==** illegal and unsustainable under law. The learned counsel further cited the decision laid down in **Samul Philipose v. Koshy Thomas** [2009 (4) KLT 360] and submits that the appeal was disposed of in violation of Sec.386 of the Code of Criminal Procedure. The findings are contradictory to the materials available on record; but, the court below in appeal miserably failed to appreciate the materials on record and considered the legality of the sentence alone. According to the learned counsel, it was incumbent upon the appellate court to consider the materials on record before disposal of the appeal. 5. Going by the judgment, it could be seen that, when the appeal was taken for hearing, the counsel appearing for the revision petitioner submitted that he did not intend to challenge the conviction on merits. In short, the sentence alone was sought to be challenged in appeal. As far as the sentence is concerned, the counsel sought for a reasonable modification of the sentence by avoiding the deterrent Crl.R.P.No.2398 of 2013 5 punishment imposed by the court below. 6. Per contra, the learned counsel for the complainant also conceded for disposing the case in such a manner as prayed for by the learned counsel for the revision petitioner. In view of the submissions at the Bar, without going into a discussion touching the merits of the case, the learned Sessions Judge considered the propriety of the sentence imposed on the revision petitioner and reduced the substantive sentence of imprisonment for a period of three months to simple imprisonment for one day till rising of the court. 7. Going by the facts of the case, in the decision in **Samul’s** case, it is seen that in that case, when the case was taken up for hearing, the counsel for the appellant/revision petitioner submitted that the appeal was not pressed and therefore, relying on the submission of the counsel, the appeal was dismissed as not pressed. I am of the opinion that what was transpired at the time of hearing Crl.R.P.No.2398 of 2013 **==> picture [7 x 10] intentionally omitted <==** of the appeal in the instant case cannot be equated with the facts of the decision in **Samul‘s** case. Unlike the facts in the above decision, in the instant case, the counsel appearing for the appellant keeping alive the appeal forfeited his own challenge against conviction on merits and he reduced his challenge to sentence only. On that submission, the counsel for the complainant conceded. Thus, the order passed in appeal was a judgment in consensus. I am of the opinion that once a right is forfeited voluntarily by the appellant, it cannot be challenged in future by himself as the relinquishment of the challenge stands on a par with pleading guilty. Therefore, I am of the opinion that a further challenge on merit is impossible in revision. Therefore, the challenge against conviction raised in this revision cannot be entertained and liable to be dismissed at the threshold and I do so. 8. The learned counsel for the revision petitioner further drew my attention to **Kanakarajan.P. vs.** Crl.R.P.No.2398 of 2013 7 **Vipin.K.V** [2013(4) KHC 180] and submits that the proceedings was initiated in a summary way and thereafter, the case was transferred to another court and the latter court, without passing an order under Sec.143 of the N.I.Act, disposed of the case, as if, the same had been disposed by the former court. I am of the opinion that the said submission cannot be entertained in this revision, as he himself forfeited his right of appeal earlier. The revision petitioner should have raised the illegality, if any, in the appeal itself and if not, after forfeiting his right of appeal, he has no right to raise anything on merits in revision. This revision petition is dismissed accordingly. **K.HARILAL, JUDGE.** Okb/stu //True copy// ## P.A to Judge