Vijuline Mathew v. T.M. Joseph & State of Kerala

``` 2025:KER:30927 ``` Crl.R.P.No.3717/2009 -:1:- **==> picture [58 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE G.GIRISH`** ``` THURSDAY, THE 10[TH] DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 ``` ``` CRL.REV.PET NO. 3717 OF 2009 ``` ``` AGAINST THE CONVICTION AND SENTENCE PASSED BY THE COURT OF IV ADDL. SESSIONS COURT (ADHOC)-II, THODUPUZHA IN CRL.A.NO.343 OF 2008 AS PER JUDGMENT DATED 20.10.2009 CONFIRMING THE CONVICTION AND SENTENCE PASSED BY THE CHIEF JUDICIAL MAGISTRATE, MUTTOM,THODUPUZHA IN ST NO.565 OF 2007 ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` VIJULINE MATHEW, S/O. MATHEW,PUTHIYAKULANGARA HOUSE, EDAVETTY P.O.,THODUPUZHA. ``` ``` BY ADV SRI.S.RAJEEV ``` ## **`RESPONDENTS/ RESPONDENTS/ COMPLAINANT & STATE :`** - **`1 T.M.JOSEPH, S/O. MATHAI, THONDAKUZHIYIL HOUSE, EDAVETTY P.O., THODUPUZHA.`** - **`2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.`** ``` BY ADVS.JOSE JOSEPH ARAYAKUNNEL VARGHESE PARAMBIL SMT.SEETHA.S, SR.PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08.04.2025, THE COURT ON 10.04.2025 PASSED THE FOLLOWING: ``` ``` 2025:KER:30927 ``` Crl.R.P.No.3717/2009 -:2:- **==> picture [58 x 58] intentionally omitted <==** ## **O R D E R** The concurrent verdicts of the Judicial First Class Magistrate Court, Thodupuzha, and the Additional Sessions Court-IV, Thodupuzha, convicting and sentencing the petitioner for the commission of offence under Section 138 of the Negotiable Instruments Act,1881 (in short, ‘NI Act’), are under challenge in this revision. 2. The first respondent preferred a complaint before the learned Magistrate alleging that a cheque dated 22.06.2005 for Rs.12,23,000/- executed and issued by the petitioner in discharge of the debt for the above amount, which he owed the first respondent, was dishonoured due to insufficiency of funds in the account of the petitioner, and that the petitioner did not care to make payment of the aforesaid amount, despite the receipt of statutory notice issued by the first respondent. The learned Magistrate took the complaint to files and issued summons to the petitioner. Since the petitioner pleaded not guilty to the offence, the learned Magistrate proceeded with the trial, in which the first respondent was examined as PW1, and 15 documents were marked as Exts P1 to P15. The petitioner did not opt for any oral evidence, but two documents were marked as Exts D1 and D2 from his ``` 2025:KER:30927 ``` Crl.R.P.No.3717/2009 **==> picture [58 x 58] intentionally omitted <==** -:3:- part. The learned Magistrate, after an evaluation of the above evidence, found that the petitioner was guilty of the offence under section 138 of the NI Act and convicted him thereunder. He was sentenced to imprisonment till the rising of the Court and to pay compensation Rs.12,23,000/- to the first respondent. A default clause of rigorous imprisonment for six months was provided for non payment of compensation. Though the petitioner preferred appeal, the learned Additional Sessions Judge, Thodupuzha, after a reappraisal of the entire evidence, concurred with the findings of the learned Magistrate and upheld the conviction and sentence. It is the above judgment of the Appellate Court dated 20.10.2009 in Crl.A.No.343/2008, which is under challenge in this revision. 3. Heard the learned counsel for the petitioner and the learned counsel for the first respondent. 4. In the evidence adduced before the Trial Court, the first respondent stated before the learned Magistrate in clear and consistent terms, about the indebtedness of Rs.12,23,000/- which the petitioner owed him. According to the first respondent, the petitioner had initially borrowed Rs.23,000/-, and thereafter, borrowed a further amount of ``` 2025:KER:30927 ``` Crl.R.P.No.3717/2009 **==> picture [58 x 58] intentionally omitted <==** -:4:- Rs.2,00,000/-. Later on the petitioner is said to have borrowed the amount of Rs.10,00,000/- from the first respondent and executed and issued the cheque for Rs.12,23,000/- covering the whole amount which he borrowed from the first respondent. The evidence adduced in the above regard clearly established the execution and issuance of Ext P1 cheque by the petitioner towards the discharge of his financial liability to the tune of Rs.12,23,000/-, which he owed the first respondent. It is also seen that all the procedural formalities envisaged under Sections 138 & 142 of the NI Act have been complied by the first respondent, while instituting the complaint against the petitioner. 5. The main challenge raised by the petitioner against the maintainability of the prosecution against him is that the complainant had failed to establish that he was having the financial capacity to advance an amount of Rs.12,23,000/- to the petitioner. It is not possible to attribute any credence to the above challenge of the petitioner, since it is brought out in the evidence that the first respondent was involved in the business of real estate as well as the conduct of a fancy shop. Exts P14 & P15 agreements were brought on record to establish the above business of the first respondent. That apart, it could be seen ``` 2025:KER:30927 ``` Crl.R.P.No.3717/2009 **==> picture [58 x 58] intentionally omitted <==** -:5:- from the cross-examination of the first respondent, who was examined before the Trial Court as PW1, that the petitioner had admitted that the first respondent had paid an amount of Rs.5,75,000/- towards clearing the financial liability which the petitioner owed certain other persons. After taking such a stand, acknowledging the capability of the first respondent to at least advance an amount of Rs.5,75,000/- to clear the debt which the petitioner incurred with certain other persons, he cannot be heard to say that the first respondent was not having the financial capacity to advance Rs.12,23,000/- to him. Therefore, the Trial Court as well as the Appellate Court had rightly discarded the challenge raised by the petitioner in the above regard. The other flimsy contentions raised by the petitioner about the difference in the ink used for making the entries in Ext.P1 cheque, alleged misuse of the cheque leaf by the first respondent, absence of witnesses to the transaction etc., are too trivial and irrelevant to be considered in a proceeding under revision. The concurrent findings on facts arrived at by the courts below, cannot be displaced by this Court in the absence of manifest illegality or impropriety in the decisions rendered by the said Courts. ``` 2025:KER:30927 ``` Crl.R.P.No.3717/2009 -:6:- **==> picture [58 x 58] intentionally omitted <==** 6. The proposition of law upon the scope of interference in revision, is well settled by a catena of decisions of the Hon'ble Supreme ## Court. ## In **State of Kerala v. Jathadevan Namboodiri : AIR 1999 SC** ## **981** , the Hon'ble Supreme Court held as follows: 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 appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. ## In **Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao** ## **Phalke & Anr : 2015 (3) SCC 123** , it has been held by the Hon'ble Supreme Court as follows: 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. Referring the above dictums, the Apex Court has observed in ## **Kishan Rao v. Shankargouda : 2018 (8) SCC 165** as follows: ``` 2025:KER:30927 ``` Crl.R.P.No.3717/2009 **==> picture [58 x 58] intentionally omitted <==** ## -:7:- 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 ground that another view is possible. Following has been laid down in paragraph 14: ”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.” ``` 2025:KER:30927 ``` Crl.R.P.No.3717/2009 **==> picture [58 x 58] intentionally omitted <==** -:8:- 7. As far as the present case is concerned, there is absolutely no reason to think that the courts below ignored the material facts and rendered the verdicts arbitrarily or capriciously. Nor could it be said that there is non-consideration of relevant materials, or palpable misreading of records. Therefore, the interference of this Court in revision is not warranted, in view of the settled position of law evolved from the aforesaid decisions of the Hon’ble Supreme Court. Accordingly, I find that the challenge raised by the petitioner in this petition against the concurrent findings of conviction and sentence of the courts below, is totally unfounded. In the result, the revision is hereby dismissed. The Registry shall transmit a copy of this order, along with case records, to the Trial Court for immediate enforcement of the sentence. (SD/-) ## **G. GIRISH, JUDGE** DST