IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 Crl.MC.No. 1300 of 2007() ------------------------------------ CRRP.38/2006 of I ADDL. SESSIONS COURT, KOLLAM. M.C.NO.56/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PUNALUR. .................... PETITIONER/PETITIONER/COUNTER PETITIONER: ----------------------------------------------------------------------- ABDUL HAKEEM, AGED 30 YEARS, S/O. SHAHUL HAMEED RAWTHER, THAVARATHU PUTHEN VILAYIL VEEDU, VENCHEMPU, PUNALUR. BY ADV. MR.V.V.RAJA, MR.M.T.SURESHKUMAR. RESPONDENTS/RESPONDENT/PETITIONER: ---------------------------------------------------------------- 1. SAJEENA A., AGED 24 YEARS, D/O. LATE M. ABDUL AZEEZ, VARTHUNDIL VEEDU, PLACHERY P.O., PUNALUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. R1 BY ADV. MR.H.B.SHENOY, MR.B.ASHOK SHENOY, SMT.LAKSHMI B.SHENOY, MR.ABU MATHEW, MR.R.SIVADASAN. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.1300 OF 2007 ------------------------------------------ Dated 6th January 2010 O R D E R Petitioner, the counter petitioner in M.C.56/2005 on the file of Judicial First Class Magistrate-III, Punalur filed this petition under Section 482 of Code of Criminal Procedure to quash Annexure-1 order passed by the learned Magistrate and Annexure-2 order passed by First Additional Sessions court, Kollam in the revision filed by the petitioner challenging Annexure-1 order. First respondent is the petitioner in M.C.56/2005. Marriage of the petitioner with first respondent was admittedly solemnised on 31/1/2002. Subsequently their relationship got strained and petitioner divorced her by pronouncing talak on 18/5/2005. First Crmc 1300/07 2 respondent filed M.C.56/2005 claiming benefits available to her under Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986. Though she raised a total amount of Rs.30,85,000/- including fair and reasonable provision and Rs.5,00,000/- given to the petitioner prior to the marriage and value of gold ornaments and properties, by Annexure-1 order learned Magistrate disbelieved all those claims except the claim for fair and reasonable provisions and return of Rs.5,00,000/- given to the petitioner prior to the marriage and expenses for maintenance during the Iddath period. Petitioner challenged that order before the Sessions court in R.P.38/2006. Before the Sessions court petitioner only challenged the direction of the Magistrate to return Rs.5,00,000/- contending that he did not receive any such amount. By Annexure-2 order Crmc 1300/07 3 learned Sessions Judge on re-appreciating the evidence dismissed the revision confirming the finding that Rs.5,00,000/- was paid prior to the marriage. As no second revision is available, this petition is filed under Section 482 of Code of Criminal Procedure. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Argument of the learned counsel is that courts below should not have believed the oral testimony of Pws.1 to 4 to find that Rs.5,00,000/- was paid to the petitioner before marriage, especially when there is no documentary evidence to prove the same. It is argued that though courts below found that Rs.5,00,000/- was given by the father of the first respondent to his brother, who was examined as PW3, a contractor, and later for paying the amount to the petitioner before the Crmc 1300/07 4 marriage, PW3 returned the money to PW2 who in turn paid it to the petitioner, when there is no evidence to prove that father of the first respondent received Rs.5,00,000/- as pensionery benefits, the oral evidence should not have been believed. It is argued that if such huge amount was paid, at least a report in writing would have been obtained and in the absence of documentary evidence the case should not have been accepted. Learned counsel also pointed out that when all other exorbitant claim raised by the first respondent was found to be unsustainable and not correct, learned Magistrate and learned Sessions Judge should not have accepted the case of payment of Rs.5,00,000/-, without cogent and reliable evidence and therefore, the orders are to be quashed. 4. Though learned counsel appearing for Crmc 1300/07 5 the petitioner pointed out that there is no proper appreciation of evidence and in the absence of documentary evidence the case should not have been accepted relying on the oral testimony of Pws.1 to 4, it is seen from Annexure-1 order that learned Magistrate has properly appreciated the evidence. Learned Magistrate did not accept the evidence regarding the other claims raised by the first respondent. That fact establishes that there was proper appreciation of the evidence. Learned Sessions Judge in revision, though not expected to re-appreciate the evidence as being done by the appellate court, has elaborately re-appreciated the evidence and found that there is no reason to disbelieve the evidence of Pws.1 to 4. Annexures-1 and 2 orders show that both the trial Magistrate and the revisional court appreciated the evidence Crmc 1300/07 6 in the proper perspective. 5. Evidence of Pws.1 to 3 establishes that father of the first respondent had received pensionery benefits and it was entrusted to his brother PW3 who is a contractor. Evidence would also establish that when money was required for the marriage of the first respondent to be paid to the petitioner, Rs.5,00,000/- received from the father of first respondent was handed over by PW3 to PW2, the brother of the first respondent. Evidence of PW2 corroborates the evidence of Pws.1 and 3 on these aspects. The evidence establishes that Rs.5,00,000/- was given by PW2 to the petitioner before the marriage. In addition PW4, Secretary of Juma Ath had also given evidence that he was present at the time of the payment at the request of PW2, as it was represented to PW4 that the amount for the Crmc 1300/07 7 marriage of first respondent is to be paid to the petitioner, PW4 is to be present at that time. Evidence of PW4 establishes that a packet containing currency notes was handed over in his presence by PW2 to the petitioner. Though PW4 did not count the currency notes or currency notes were not counted in his presence, his evidence shows that before the packet was given to the petitioner, he had heard petitioner and Pws.2 and 3 stating that it contains Rs.5,00,000/-. In such circumstances, I find no reason to interfere with the appreciation of evidence by the courts below or to quash the orders as sought for. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.