IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Crl.Rev.Pet.No. 2651 OF 2007(E) ------------------------------- CRRP.108/1998 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD MC.131/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM .................... REVN. PETITIONER(S): RESPONDENTS/PETITIONERS: -------------------------------- 1. LEELA, D/O NEELAKANDAN NAMBOODIRIPAD, AGED 42 YEARS, KURIYEDATH MANA, KUTTANASSERY DESOM, VELLINEZHI AMSOM, OTTAPALAM TALUK. 2. ANOOP KRISHNAN, AGED 23 YEARS, S/O LEELA, KURIYEDATH MANA, KUTTANASSERY DESOM, VELLINEZHI AMSOM, OTTAPALAM TALUK. 3. AJITH KRISHNAN, AGED 17 YEARS, (MINOR), S/O LEELA, -DO- -DO-. BY ADV. SMT.K.V.BHADRA KUMARI SMT.ANILA GEORGE RESPONDENT(S)/PETITIONER/RESPONDENT: ------------------------- 1. V.RADHAKRISHNAN, S/O VASU, NO.8/335, SAHYADRI COLONY, K.K.ROAD, CHANDRA NAGAR, PALAKKAD. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 SRI.V.CHITAMBARESH FOR R1 SRI.T.C.SURESH MENON FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/11/2008, ALONG WITH CRMC NO. 4337 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2651 OF 2007 AND CRL.M.C.NO.4337 OF 2005 ------------------------------------------ Dated this the 13th day of November, 2008 O R D E R Revision petitioners are the divorced wife and children of the first respondent, the petitioner in Crl.M.C.4337 of 2005. Revision petitioners filed M.C.131 of 1997 claiming maintenance under section 125 of Code of Criminal Procedure before Judicial First Class Magistrate, Ottapalam. Learned Magistrate granted maintenance at the rate of Rs.500/- per month to each of the petitioners from 3.12.1997 onwards rejecting the case of discharge pleaded by first respondent under Ext.D1. First respondent challenged that order before Sessions Court, Palakkad in Crl.R.P.108 of 1998. Learned Sessions Judge on reappreciation of evidence upheld Ext.D1 and while confirming the maintenance awarded, directed to adjust the amount covered under Ext.D1 towards the maintenance. Revision petitioners are challenging that order contending that Ext.D1 is not a receipt issued by first petitioner and therefore learned Sessions Judge should not have directed adjustment of the CRRP2651/07 & Crl.M.C.4337/05 2 amount. The husband challenged that order in Crl.M.C.4337 of 2005 contending that learned Sessions Judge should have found that Ext.D1 operates as a final statement of the claim of the divorced wife and their children. Petition under section 482 of Cr.P.C. was filed as he is not entitled to file second revison. 2. Learned counsel appearing for petitioners and first respondent were heard. 3. Petitioner in the Criminal MC., the counter petitioner in M.C.131 of 1997, had challenged the order before Sessions Court in Crl.R.P.108 of 1998. Learned Sessions Judge on reappreciation of evidence found that the divorced wife and children are entitled to maintenance. So also, the quantum of maintenance was confirmed. As the husband is not entitled to prefer a second revision, by filing a petition under section 482 of Cr.P.C. , he is not entitled to challenge that order. Therefore Crl.M.C.4337 of 2005 is dismissed. 4. The argument of the learned counsel appearing for revision petitioners is that learned Sessions Judge should not have relied on Ext.D1. It was pointed out that the very case set up by the first respondent is improbable to be believed and case CRRP2651/07 & Crl.M.C.4337/05 3 that he paid Rs.1,00,000/- and took the wife along with him to the Bank and opened an account and deposited that amount and later the wife withdrew that amount is inherently unbelievable. It was pointed out that if the amount is to be withdrawn by the divorced wife immediately, she would not have opened an account and would not have deposited the amount at all and this aspect was not taken into consideration. Learned counsel also pointed out that there is discrepancy in the case pleaded in the counter statement, the suggestion made to PW1, the case set up in the chief examination when examined as PW1 and later modified in cross-examination. It is therefore argued that Ext.D1 should be rejected. 5. Learned counsel appearing for first respondent pointed out that it is the specific case of first respondent that there was a settlement and the marriage was divorced and as per the settlement Rs.1,00,000/- was fixed being the amount for future maintenance of the wife and children and Rs.50,000/- was agreed to be paid as the share of the property to be transferred to first respondent by the first petitioner and as the first petitioner wriggled out of the agreement, first respondent filed a CRRP2651/07 & Crl.M.C.4337/05 4 suit for specific performance of the agreement, which was held in his favour and later the appeal filed by first petitioner was also dismissed under Ext.D5 judgment produced before the revisional Court and revisional Court appreciated the evidence in the light of the evidence of the Manager of the Bank, who was examined as PW2 in this case and upheld the case of the first respondent and therefore there is no reason to interfere with the factual finding of learned Sessions Judge. 6. When the learned Magistrate on appreciation of evidence did not rely on Ext.D1, learned Sessions Judge relied on Ext.D1. The question is whether Ext.D1 is proved to be a receipt issued by the first petitioner. If it is a receipt issued by the first petitioner towards receipt of Rs.1,00,000/- and that too towards the maintenance, Sessions Judge was justified in directing adjustment of that amount the maintenance awarded. If Ext.D1 is not a receipt issued by first petitioner, the judgment of the learned Sessions Judge with respect to adjustment is not sustainable. The crucial question is whether Ext.D1 is proved to be the receipt issued by first petitioner. Though reliance was placed on the evidence of PW2, who is one of the attesting CRRP2651/07 & Crl.M.C.4337/05 5 witnesses to Ext.D1, on going through the deposition it is not possible to place absolute reliance on his evidence. When first petitioner has a specific case that signature seen in Ext.D1 is not her signature, first respondent has specifically deposed that it is her signature. Question whether the signature seen in Ext.D1 is that of first petitioner is therefore the most relevant question to be decided in this case. When first petitioner has no case that Ext.D1 was created making use of her signature in a blank paper, if it is proved that the signature seen in Ext.D1 is her signature, necessarily the case of the first respondent is to be accepted. On the other hand, if it is proved that the signature seen in Ext.D1 is not that of first petitioner, the case of first respondent should definitely be thrown out. In such circumstances I find that interest of justice warrants that an opportunity is to be granted to first respondent to prove that the signature seen in Ext.D1 is that of the first petitioner. To enable the first respondent to prove that fact, the case is to be remanded to learned Magistrate for fresh disposal after getting a report of an expert on the question. 7. Order passed by the Sessions Judge, Palakkad in CRRP2651/07 & Crl.M.C.4337/05 6 Crl.R.P.108/1998 as well as the order passed by Judicial First Class Magistrate, Ottapalam are set aside making it clear that the liability to pay maintenance under section 125(3) to the petitioners as found by the learned Magistrate and learned Sessions Judge including the quantum is final. The only question to be decided is whether Ext.D1 receipt was issued by the first revision petitioner. If it is found that Ext.D1 is a receipt issued by first revision petitioner, Magistrate is bound to give adjustment of that amount towards the maintenance payable by the first respondent, as found by the Magistrate. The Magistrate is directed to forward Ext.D1 to Forensic Science Laboratory, Thiruvananthapuram for comparison with the admitted signature of the first petitioner, to be taken from the open Court. If the first respondent or petitioners make available any other admitted signature of the first petitioner, during the relevant period, Magistrate to forward the same also to the expert. The Magistrate shall direct the Forensic Science Laboratory to compare the signature seen in Ext.D1 with the admitted signature of first petitioner and on getting the report pass appropriate order in accordance with law with respect to CRRP2651/07 & Crl.M.C.4337/05 7 the adjustment. The first respondent is to meet the expenses to send Ext.D1 to the expert. Send back the records to Judicial First Class Magistrate, Ottapalam. Parties are directed to appear before Magistrate on 5.12.2008. Learned Magistrate to dispose the matter as expeditiously as possible. M. SASIDHARAN NAMBIAR, JUDGE Okb/-