IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 RP.NO. 42 OF 2010() ------------------------------ AGAINST THE JUDGEMENT IN RSA.1124/2009 DATED 29/10/2009 .................... REVIEW PETITIONER(S): PETITIONER-APPELLANT IN R.S.A. --------------------------------------------------------------------------------- DOMINIC THOMAS,S/O.THOMAS,NELLUVELIL HOUSE,COLLEGE JUNCTION,ERATTUPETTA.P.O. BY ADV. SRI.K.JAYAKUMAR, SENIOR ADVOCATE SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT(S): RESPONDENT IN R.S.A. ---------------------------------------------------------- M/S.JEWEL FINANCIERS,ERATTUPETTA, REPRESENTED BY ITS MANAGING PARTNER, MR.SAJI THOMAS,PURAPPANTHANAM,ERATTUPETTA.P.O, KOTTAYAM DISTRICT. ADV. SRI.T.J.MICHAEL FOR R1 THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ================================= R.P. NO.42 of 2010 in R.S.A. No.1124 of 2009 ================================= Dated this the 23rd day of March, 2010 O R D E R Petitioner whose appeal was dismissed at the admission stage seeks review of the judgment dated 29.10.2009 on the ground that certain materials which would throw light on the controversy have come to his notice only after dismissal of the Second Appeal by this Court and hence review of the judgment is required. 2. According to the respondent/respondent, petitioner/appellant had borrowed Rs.50,000/- from him and for its repayment issued Ext.A3, demand promissory note. That amount was not paid and thereon respondent instituted the suit. Petitioner who is an Ayurveda Physician contended that he had asked for a loan of Rs.20,000/-, Rs.17,500/- was given to him and as security signed blank cheque and signed blank papers were taken from him. Trial court was not impressed by the contention raised by the appellant and granted decree in favour of the respondent. That was confirmed by the first appellate court against which the Second Appeal was filed. Since no substantial question of law was R.P. No.42 of 2010 in R.S.A. No.1124 of 2009 -: 2 :- involved this Court refused to admit the Second Appeal. Accordingly the Second Appeal was dismissed on 29.10.2009. The reason stated for review is that in the criminal case initiated at the instance of petitioner, Managing Partner of respondent who was examined as P.W1 in the trial court has given a statement to the Investigation Officer that the amount requested by way of loan was Rs.20,000/-, he gave Rs.17,500/- and took signed blank cheque and signed blank papers as security. The Police after investigation submitted a final report against the respondent and others and the copy of that final report is produced along with the Review Petition which states that accused therein were charge-sheeted for offences punishable under Sections 120(b), 420, 387, 406, 465, 468, and 471 read with 34 of the Indian Penal Code. Learned counsel submits that at the time P.W1 was examined in the trial court, these documents were not in the custody of the petitioner and hence could not be produced. Hence the prayer for review. Petition is opposed by the learned counsel for respondent on the ground that none of the documents relied on are binding on the respondent or P.W.1 and at any rate it cannot be said that in spite R.P. No.42 of 2010 in R.S.A. No.1124 of 2009 -: 3 :- of exercise of due diligence petitioner was not aware of the documents now attempted to be pressed into service. 3. Order XLVII Rule 1 of the Code of Civil Procedure states that a review is permitted among other things when there is the discovery of new or important matter or evidence which after the exercise of due diligence was not within knowledge or could not be produced by the person seeking review at the time when the decree was passed or order was made. Here what is produced is copy of statement P.W.1 is said to have given to the Investigation Officer under Section 161 of the Code of Criminal Procedure. That is not a signed statement and is not required to be signed as well. As such that statement cannot bind P.W.1. So far as final report produced along with the petition is concerned, that is not the final word as to the truth of the allegations made therein and a final report is only an accusation made by the police after investigation. Therefore that by itself cannot override the evidence given by the parties in the courts below. Moreover it is seen that the criminal case was registered on the information given by petitioner on 28.6.2005 and the learned Munsiff disposed of the case on R.P. No.42 of 2010 in R.S.A. No.1124 of 2009 -: 4 :- 31.1.2006. “Due diligence” means diligence reasonably expected from and ordinarily exercised by a person who seeks to satisfy a legal requirement or discharge an obligation. It is not as if petitioner was not aware of the criminal case in which case it is difficult to think that in spite of exercising due diligence the material now produced before me was not within the knowledge of petitioner, could not be produced in the courts below and therefore the case is to be reviewed at this stage. I am not satisfied that the grounds made out by the petitioner justified a review of the judgment. Accordingly Review Petition is dismissed. No costs. Interlocutory Application No.125 of 2010 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv