Allowed

M.P.George v. Domanic P.A.

Kerala HC9 Jan 2017Crl.Rev.Pet/1743/2016

Case brief

AI extract

What is this about?

The Court allowed the criminal revision petition seeking compounding of an offence under Section 138 of the Negotiable Instruments Act. It held that since the civil dispute was settled and compensation paid, the offence was compounded, leading to the petitioner's acquittal and setting aside of conviction.

What did the court decide?

Offence compounded; impugned conviction and sentence set aside; petitioner acquitted.

M.P.George Vs Domanic P.A. — Cheque Dishonour | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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MONDAY, THE 9TH DAY OF JANUARY 2017/19TH POUSHA, 1938

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Crl.Rev.Pet.No. 1743 of 2016 ()

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AGAINST THE JUDGMENT IN CRL.A 277/2014 OF ADDITIONAL SESSIONS COURT - VIII, ERNAKULAM DATED 07-10-2016

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AGAINST THE JUDGMENT IN CC 157/2011 OF JUDICIAL MAGISTRATE FIRST CLASS-II, ALUVA DATED 30-04-2014

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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M.P.GEORGE, AGED 61, SON OF MR.PAULOSE, MAVELI HOUSE, EDAKUNNU, PADUVAPURAM (PO), KARUKUTTY VILLAGE, ERNAKULAM DISTRICT, PIN-683 582.

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BY ADVS.SRI.SHAJI CHIRAYATH

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SMT.JIJI M. VARKEY SMT.SAVITHA GANAPATHIYATAN SRI.M.M.SHAJAHAN

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RESPONDENT(S)/RESPONDENTS/COMPLAINANT:

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1. DOMANIC P.A., AGED 60, SON OF MR.ANTONY, PAYYAPILLY HOUSE, PEECHANIKKAD (PO), ANGAMALY, ERNAKULAM DISTRICT, PIN-683 572.

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2. STAT OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT.

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R2 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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SKG

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ALEXANDER THOMAS, J.

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Crl.R.P.No.1743 of 2016

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Dated this the 9^th day of January, 2017

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The instant revision petition is filed against the impugned

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conviction and sentence imposed on the petitioner/accused for

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the offence under Section 138 of the Negotiable Instruments Act as per the impugned judgment dated 30.4.2014 in C.C.No.157 of 2011 on the file of the Judicial First Class Magistrate Court-II, Aluva, as affirmed by the impugned judgment dated 7.10.2016 in Crl.Appeal No.277 of 2014 on the file of the court of the Additional Sessions Judge - VIII, Ernakulam. As per the modified sentence imposed, the petitioner was sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.6.8lakhs to the complainant and in default thereon to suffer simple imprisonment for a period of one

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month, etc.

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Sri.Shaji Chirayath, learned counsel appearing for the

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Crl.R.P.No.1743/16

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revision petitioner/accused, and Sri.Prasad Chandran, learned counsel appearing for the first respondent/complainant, submit that the matter was already settled between the parties. It is pointed out by the learned Advocates appearing for the rival parties that apart from the criminal complaint, there was civil disputes pending between the parties for the very same cause of action and that the amounts in question were already paid by the accused to the complainant by virtue of the settlement arrived at between the parties in the civil proceedings. These aspects could not be effectively brought to the notice of the appellate court and that the parties could not file a joint petition to that effect before the appellate court. Now the parties have filed a joint compromise petition for compounding of the offence as per Criminal Miscellaneous Petition No.111 of 2017 filed in this Crl.R.P., which reads as follows :

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“1. The Revision Petitioner herein is the appellant in Crl.Appeal No.277 of 2014 on the file of the Court of the

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Crl.R.P.No.1743/16

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Additional Sessions Judge VIII at Ernakulam filed against the judgment of conviction and sentence. Appellant herein is the accused in Calendar Case No.157 of 2011 on the file of the Judicial First Class Magistrate Court II, Aluva, under Section 138 of the Negotiable Instruments Act. It is submitted that disputes between the revision petitioner and the first respondent settled out of court and connected original suit between parties also settled, there is no grievance of future claims whatsoever is exists in these cases. However, the court below without giving opportunity to file memo to that effect by the first respondent, taken up for judgment according its whims and fancies without hearing of the both parties.

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It is submitted that now parties to the present revision petition, i.e. Second petitioner and first petitioner are complainant and accused respectively in Calendar Case No.157 of 2011 on the file of the Judicial First Class Magistrate Court-II. Aluva, settled their grievance out of court. Hence, there is no surviving issues whatsoever in nature between parties. In the above circumstance, it is just and necessary that this Hon'ble Court may be pleased to set aside the judgment of conviction and sentence along with the order of compensation imposed pursuant to appellant in Criminal Appeal No.277 of 2014 on the file of the Court of the Additional Sessions Judge -VIII at Ernakulam filed against the judgment of conviction and sentence. Appellant herein is the accused in Calendar Case No.157 of 2011 on the file of the Judicial First Class Magistrate Court II, Aluva and acquit Revision Petitioner in the interest of justice and equity.”

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The learned advocates appearing for the parties

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concerned submit that the offence under Section 138 of the

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Negotiable Instruments Act may be compounded and the impugned

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Crl.R.P.No.1743/16

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conviction and sentence imposed on the petitioner/accused may be set aside and that the petitioner may be acquitted of the offence. It is common ground that the criminal proceedings and civil proceedings were pending between the parties on the same cause of action and after the impugned judgment of the trial court in the criminal complaint, the matter was settled in the civil proceedings and the amounts which were agreed to be paid in the compromise in the civil proceedings have already been paid by the accused to the complainant and that a joint petition to that effect could not be effectively presented before the criminal appellate court, etc.

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In the light of these aspects, this Court is of the view that the plea for compounding of the offence could be considered by virtue of the enabling provisions contained in Section 320 (8) of the Cr.P.C. read with Section 147 of the Negotiable Instruments Act. Accordingly, it is ordered that the learned prosecutor appearing for the second respondent/State has no serious objection

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Crl.R.P.No.1743/16

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to this course of action.

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Accordingly, it is ordered that the offence alleged the petitioner in this case under Section 138 of the Negotiable Instruments Act will stand compounded and the impugned conviction and sentence imposed on the petitioner will stand set aside. The petitioner will stand acquitted of the said offence.

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With these observations and directions, the Criminal Revision Petition stands finally disposed of.

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ALEXANDER THOMAS Judge

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csl

M.P.George v. Domanic P.A.

Case brief

What is this about?

What did the court decide?

M.P.George v. Domanic P.A.

Case brief

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What did the court decide?

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