Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN WEDNESDAY, THE10H DAY OF DECEMBER201419TH AGRAHAYANA, 1936 Crl.Rev.Pet.No. 564 of 2014 () ------------------------------- AGAINST THE JUDGMENT
IN CRL.A.849/2010 of SESSIONS COURT,THRISSUR DATED3003-2013 AGAINST THE JUDGMENT
IN C.C.NO.2716/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THRISSUR DATED1312.2010 REVISION PETITIONER(S)/APPELLANT/ ACCUSED: ------------------------------------------------------------------------- BASHEER PUTHENVEETTIL, AGED58YEARS S/O KUNJAHAMMED, PUTHENVEETTIL HOUSE, B.P ANGADI TIRUR P.O, MALAPPURAM DISTRICT BY ADVS.SRI.P.K.SAJEEV SRI.P.A.PETER SMT.TINTU GEORGE RESPONDENT(S)/RESPONDENTS/ STATE & COMPLAINANT: ---------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM2 K.P RAVEENDRANATHAN, S/O PARUKUTTY AMMA, KIZHAKKOOTTU HOUSE, VARAVOOR P.O., THRISSUR68058 R1 BY PUBLIC PROSECUTOR SRI.N.SURESH R2 BY ADV. SRI.RAJIT THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON10 12-2014, ALONG WITH CRL.APPEAL (V) NO.242/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Bb K. Ramakrishnan, J.
============================== Crl.R.P.No.564 of 2014 and Crl.Appeal (V).No.242 of 2014 ============================== Dated this, the 10th day of December, 2014. ORDER
Accused in C.C.No.2716/2008 is the revision petitioner in Crl.R.P.No.564/2014 while complainant in that case is the appellant in Crl.Appeal No.242/2014.
2. For the purpose of convenient sake, I am referring to the status of the parties as in the lower court. The complainant filed a private complaint against the accused alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act') alleging that the accused borrowed a sum of Rs.2,50,000/- and in discharge of that liability, he had issued Ext.P1 cheque which when presented was dishonoured for the reason 'funds insufficient' evidenced by Ext.P2 dishonour memo and that was intimated to the complainant by his banker vide Ext.P3 intimation letter. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt. Since he did not receive the postal acknowledgment, he made Ext.P6 complaint to the Superintendent of Postal Service and received Ext.P7 Crl.R.P.No.564 of 2014 & Crl.Appeal No.242 of 2014 :
2. : intimation stating that the notice has been served on the addressee. The accused had not paid the amount. So, he had committed the offence punishable under Section 138 of the Act.
3. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P7 were marked on his side. After closure of the complainant's evidence, the accused was questioned under Section 313 of Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, at the time when PW1 was admitted in the partnership, an amount of Rs.1,50,000/- was invested and as security for return of that amount at the time of dissolution of the partnership, he had issued a blank signed cheque and that was misused and the present complaint was filed. The court below found the accused guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay a Crl.R.P.No.564 of 2014 & Crl.Appeal No.242 of 2014 :
3. : compensation of Rs.2,50,000/- in default to undergo simple imprisonment for three months under Section 357(3) of Code of Criminal Procedure. Dissatisfied with the same, the accused filed Crl.Appeal No.849/2010 before the Sessions Court, Thrissur and the learned Sessions Judge by the impugned judgment, allowed the appeal in part confirming the order of conviction and compensation with default sentence, but, reduced the substantive sentence to imprisonment till rising of court. Dissatisfied with the order of conviction and sentence, the accused filed Crl.R.P.No.564/14 and dissatisfied with the sentence imposed, the complainant filed Crl.Appeal No.242/2014.
4. During the pendency of these cases, matter has been referred for mediation and parties have settled the case and arrived at a settlement and a settlement agreement has been forwarded to this court which reads as follows: "Both parties have settled their dispute during the course of mediation on the following terms and conditions:
1. The petitioner has agreed to pay an amount of Rs.1,75,000/- (Rupees One Lakh and Seventy Five Thousand only) to the 2nd respondent as claim amount.
2. The petitioner has agreed to pay the agreed amount on or before 15.03.2015.
3. If the petitioner fails to pay the settled amount of Crl.R.P.No.564 of 2014 & Crl.Appeal No.242 of 2014 :
4. : Rs.1,75,000/- the 2nd respondent shall proceed for the claim amount of Rs.2.5 lakhs.
4. No further claims will be raised by each other regarding this issue before any of the Forum." 5. Since the parties have settled the case and filed a settlement agreement, this court feels that, it need not go into the question of conviction and that can be confirmed and the amount of compensation as fixed as a default compensation can be accepted, but, if the parties have paid the amount within that time, then, the complainant can be given a liberty to file a receipt before the court below accepting the amount mentioned in the agreement as full and final settlement and if such a receipt is produced before the court below, then, that can be accepted by the court below and appropriate orders can be passed. So, the revision petition is disposed of as follows: The order of conviction passed by the court below is hereby confirmed. So, the conviction and sentence passed by the court below can be confirmed, but, a liberty can be given to the parties to settle the claim for a lesser amount, if the amount is paid within the time provided in the settlement agreement and if that fact is brought to the notice of Crl.R.P.No.564 of 2014 & Crl.Appeal No.242 of 2014 :
5. : the court, then, the court below can accept that as full and final settlement and record the same as fully settled in the respective register and permit the revision petitioner to serve the sentence of imprisonment till rising of court. The amount has to be paid on or before 15.03.2015. Till then, the execution of sentence is directed to be kept in abeyance. If the amount is paid directly to the complainant and the accused producing a receipt for full and final settlement of the claim amount and the complainant appears before the court below and acknowledges the receipt of the same, then, the court below is directed to record the same in the respective register as substantial compliance of payment of compensation as provided in the decisions reported in Beena Vs. Balakrishnan Nair and Another [2010 (2) KLT1017 and Sivankutty Vs. John Thomas and Another [2012 (4) KLT21 and permit the revision petitioner to serve the substantive sentence of imprisonment till rising of court. Crl.R.P.No.564 of 2014 & Crl.Appeal No.242 of 2014 :
6. : With the above observation and direction, the revision petition and criminal appeal are disposed of. The memorandum for agreement will form part of this common order. Sd/- K.Ramakrishnan, Judge. Bb [True copy] P.A to Judge