Kerala High Court
Anitha G. Nair vs State Of Kerala on 6 October, 2021
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
CRL.REV.PET NO. 534 OF 2021
AGAINST THE JUDGMENT DATED 26.03.2021 IN Crl.A NO.218/2019 OF ADDITIONAL
SESSIONS COURT-II, MAVELIKARA.
AGAINST THE JUDGMENT DATED 18.10.2019 IN ST NO.1255/2016 OF JUDICIAL MAGISTRATE
OF THE FIRST CLASS -II, HARIPAD.
REVISION PETITIONER/APPELLANT/ACCUSED:
ANITHA G. NAIR,
AGED 47 YEARS,
W/O. GOPALAKRISHNAN NAIR,
MEKKATTU PUTHEN VEEDU,
OMALLOOR VILLAGE,
KOZHENCHERY TALUK.
BY ADV H.JAWHAR
RESPONDENTS/RESPONDENTS/STATE&COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
2 M/S. GOKULAM CHITS AND FINANCE CO. (P) LTD.,
HEAD OFFICE AT SREE GOKULAM TOWER NO.66(O.NO.356)
ARCOT ROAD, CHENNAI-600 024
REPRESENTED BY POWER OF ATTORNEY HOLDER JAMES PHILIP, WORKING AS
LEGAL CLERK,
M/S. SREE GOKULAM CHITS AND FINANCE CO. (P) LTD.
PP SRI M.P.PRASANTH
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 06.10.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.R.P No.534/2021 2
ORDER
Dated this the 06th day of October, 2021 This revision is filed against concurrent judgments passed by Judicial First Class Magistrate Court-II, Haripad (for short, 'the trial court') and Additional Sessions Court- II, Mavelikara, (for short, 'the appellate court') by which the revision petitioner was found guilty for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (fort short, 'the N.I Act') and convicted and sentenced.
2. The trial court by it's judgment dated 18.10.2019 has found him guilty and directed him to undergo simple imprisonment for one month and to pay compensation of Rs.2,88,330/- to the complainant under Section 357(3) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C') and to undergo simple imprisonment for two months as default sentence. When the judgment of the trial court was assailed in appeal, the appellate court has confirmed Crl.R.P No.534/2021 3 the finding of guilt, and orders of conviction and sentence. Aggrieved by the judgments, the accused is now in Revision.
3. The contention of Sri. Jawahar H, the learned counsel for the revision petitioner was that the complainant is a private company namely, M/s. Gokulam Chits & Finance Co.(P). Ltd and it was represented by Sri.James Philip, a legal clerk and also the Power of Attorney holder of it. According to him, he has adduced evidence as PW1. Much later, the company has executed a fresh power of attorney in favor of some other person. According to the learned counsel that person failed to mount the box to adduce evidence and therefore the trial is vitiated for that reason. But, court below has found that the evidence adduced by the erstwhile power of attorney holder is there and that his evidence as a witness would suffice. According to the learned counsel, that finding of the court below is totally incorrect. According to him, the present power of attorney holder ought to have mounted the box and deposed for and on behalf of the complainant. Crl.R.P No.534/2021 4 According to him though the trial court was addressed vehementally on that aspect, it as well as the appellate court failed to appreciate it in the correct perspective and thus the impugned judgments were passed.
4. It is noticed from a reading of the judgment of the trial court that the original power of attorney holder was examined in the case as PW1 and another was also examined as PW2. Going by the narration of the evidence in the impugned judgments, it is found that PW1 has spoken about the transaction in a proper and cogent manner as if he had sufficient acquaintance of it. His evidence being so, as rightly observed by the court below there is absolutely no need to examine the present power of attorney holder. The prosecution under Section 138 of N.I Act being a summary trial, if a witness who was a legal clerk of the complainant as well as it's power of attorney holder, if was examined and has deposed the material aspects relating to the transaction that caused issuance of the disputed cheque and his evidence also stands uncontroverted, there is every reason to place reliance on Crl.R.P No.534/2021 5 it. The trial court as well as the appellate court relied on the said evidence and are absolutely justified in doing so.
5. This being a revision, as held by the appellate court in Bir Singh Vs. Mukesh Kumar [2019 (1) KHC 774 (SC)] concurrent findings of guilt, orders of conviction and sentence evenif erroneous cannot be interfered with unless a jurisdictional error exists and pointed out by the revision petitioner. In the case on hand, the contention raised cannot be accepted as a jurisdictional error and this Court is unable to invoke the revisional jurisdiction, revision is only to fail for the above reasons.
6. The learned counsel for the revision petitioner has sought for some indulgence in the matter for grant of time to deposit the compensation amount. It is submitted by the learned counsel for the revision petitioner that at the time of the admission of the appeal Rs.60,000/- was deposited as directed by the Appellate Court and that amount still stands in deposit. Therefore, the said amount can be adjusted to the compensation amount payable and the sum outstanding as payable is only Rs.2,28,330/-. This Crl.R.P No.534/2021 6 Court is inclined to grant time till 13/12/2021 from this day for enabling the revision petitioner to deposit the balance compensation amount of Rs.2,28,330/- (Two lakh twenty eight thousand three hundred and thirty only). The revision petitioner shall see that Rs.2,28,330/- is deposited before Judicial First Class Magistrate-II, Haripad on or before 13.12.2021. If the revision petitioner fails to make the deposit within 13.12.2021, the trial court shall proceed with the execution of the default sentence forthwith.
Sd/-
MARY JOSEPH JUDGE JJ