Allowed

Ummer v. State of Kerala

Kerala HC16 Dec 2022Crl.Rev.Pet/465/2022

Case brief

AI extract

What is this about?

The Kerala High Court allowed three connected criminal revision petitions challenging convictions for cheating. The court exercised its revisionary powers under Section 401 CrPC to permit compounding of the offence despite conviction. Based on the de facto complainant's affidavit confirming voluntary settlement, the court set aside convictions and sentenced the accused.

What did the court decide?

The conviction and sentences imposed on the petitioners were set aside, and the petitioners were acquitted of all charges.

Ummer Vs State of Kerala — Cheating and Forgery | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

¶4

FRIDAY, THE 16TH DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944
CRL.REV.PET NO. 463 OF 2022

¶5

[ARISING OUT OF JUDGMENT PASSED BY THE SESSIONS JUDGE DATED

¶6

19.3.2022 IN CRL.APPEAL NO.106/2020 FILED AGAINST THE JUDGMENT IN
C.C.NO.1409/2012 DATED 27.2.2020 PASSED BY THE JUDICIAL FIRST

¶7

CLASS MAGISTRATE COURT, PATTAMBI]

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REVISION PETITIONER/APPELLANT/ACCUSED:

¶9

NABEESA @ ITHATHA
AGED 44 YEARS
W/O UMMER, KALATHIL HOUSE, PALLAM, DESAMANGALAM,
THALAPILLY TALUK, THRISSUR DISTRICT., PIN - 679532
BY ADVS.
SASI M.R.
SREEKUMAR K.V.
DHARMYA M.S
KAVYA KRISHNAN
S.SAJIT SANAL

¶10

RESPONDENT/STATE & DEFACTO COMPLAINANT:

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1. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
PIN - 682031

¶12

2. SAMEER, AGED 39 YEARS, S/O. HAMSA, POOVANTHINKAL
HOUSE, KEEZHAYUR P.O., OTTAPPALAM TALUK PIN-679333,
PALAKKAD DISTRICT.
[SUO MOTU IMPLEADED AS 2ND RESPONDENT AS PER ORDER
DATED 16.12.2022)

¶13

OTHER PRESENT:

¶14

R1 BY ADV SEENA C – PP
R2 BY ADV. SILPA N.P.

¶15

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 16.12.2022, ALONG WITH Crl.Rev.Pet.464/2022, 465/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

CRL.RP Nos.463,464 &465 of 2022 2

¶17

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶18

PRESENT

¶19

THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

¶20

FRIDAY, THE 16TH DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944

¶21

CRL.REV.PET NO. 464 OF 2022

¶22

[ARISING OUT OF JUDGMENT PASSED BY THE SESSIONS JUDGE DATED
19.3.2022 IN CRL.APPEAL NO.156/2020 FILED AGAINST THE JUDGMENT
IN C.C.NO.1409/2012 DATED 27.2.2020 PASSED BY THE JUDICIAL FIRST

¶23

CLASS MAGISTRATE COURT, PATTAMBI]

¶24

REVISION PETITIONER/APPELLANT/ACCUSED:

¶25

MUHAMMED ALI
AGED 38 YEARS
S/O KOYAMU, KALATHIL HOUSE, PALLAM, DESAMANGALAM,
THALAPILLY TALUK, THRISSUR DISTRICT., PIN - 680566
BY ADVS.
SASI M.R.
SREEKUMAR K.V.
KAVYA KRISHNAN
DHARMYA M.S
S.SAJIT SANAL

¶26

RESPONDENTS /STATE AND DEFACTO COMPLAINANT:

¶27

1. STATE OF KERALA

¶28

REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN – 682031

¶29

2. SAMEER, AGED 39 YEARS, S/O. HAMSA, POOVANTHINKAL
HOUSE, KEEZHAYUR P.O., OTTAPPALAM TALUK PIN-679333,
PALAKKAD DISTRICT.
[SUO MOTU IMPLEADED AS 2ND RESPONDENT AS PER ORDER
DATED 16.12.2022)

¶30

OTHER PRESENT:

¶31

R1 BY ADV SEENA C – PP
R2 BY ADV. SILPA N.P.

¶32

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 16.12.2022, ALONG WITH Crl.Rev.Pet.463/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶33

CRL.RP Nos.463,464 &465 of 2022 3

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶35

PRESENT

¶36

THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

¶37

FRIDAY, THE 16TH DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944

¶38

CRL.REV.PET NO. 465 OF 2022

¶39

[ARISING OUT OF JUDGMENT PASSED BY THE SESSIONS JUDGE DATED
19.3.2022 IN CRL.APPEAL NO.236/2020 FILED AGAINST THE JUDGMENT
IN C.C.NO.1409/2012 DATED 27.2.2020 PASSED BY THE JUDICIAL FIRST

¶40

CLASS MAGISTRATE COURT, PATTAMBI]

¶41

REVISION PETITIONER/APPELLANT/ACCUSED:

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UMMER
AGED 53 YEARS
S/O KALATHIL MOIDEEN, KALATHIL HOUSE, PALLAM,
DESAMANGALAM, THALAPILLY TALUK, THRISSUR DISTRICT,
PIN -680566

¶43

BY ADVS.
SASI M.R.
DHARMYA M.S
KAVYA KRISHNAN
S.SAJIT SANAL

¶44

RESPONDENT/RESPONDENT/STATE:

¶45

1. STATE OF KERALA

¶46

REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN – 682031

¶47

2. SAMEER, AGED 39 YEARS, S/O. HAMSA, POOVANTHINKAL
HOUSE, KEEZHAYUR P.O., OTTAPPALAM TALUK PIN-679333,
PALAKKAD DISTRICT.[SUO MOTU IMPLEADED AS 2ND
RESPONDENT AS PER ORDER DATED 16.12.2022)

¶48

OTHER PRESENT:

¶49

R1 BY ADV SEENA C – PP
R2 BY ADV. SILPA N.P.

¶50

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 16.12.2022, ALONG WITH Crl.Rev.Pet.463/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶51

CRL.RP Nos.463,464 &465 of 2022 4

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O R D E R

¶53

[Crl.Rev.Pet Nos.463/2022, 464/2022, 465/2022]

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These Criminal Revision Petitions are submitted by the accused persons in C.C.No.1409/2012 on the file of the Judicial First Class Magistrate Court, Pattambi. The aforesaid cases arise from Crime No.331/2012 of Pattambi Police Station, which was registered for the offences punishable under sections 420 r/w. 34 of the Indian Penal Code (IPC).

¶55

Crl.R.P.No.465/2022 is filed by the 1^st accused, Crl.R.P.No.464/2022 is filed by the 2^nd accused and Crl.RP No.463/2022 is filed by the 3^rd accused.

¶56

The prosecution case is that, the accused in furtherance of their common intention to deceive CW1 Sameer, dishonestly induced him to deliver a sum of Rs.95,000/- to the accused by making him to believe that they will arrange a job Visa to the defacto complainant. However, the accused never arranged the Visa nor repaid the amount and thus a complaint was submitted before the Police, who registered the aforesaid crime. After investigation, a final report was submitted before the Judicial First Class Magistrate Court, Pattambi.

¶57

In the trial, the prosecution examined Pws.1 to 4 and Exhibits P1 and P2 were marked. No defence evidence was adduced. After trial, the learned Magistrate found the accused guilty of the

¶58

CRL.RP Nos.463,464 &465 of 2022 5

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offence and were sentenced to undergo simple imprisonment for a period of 1 year and fine of Rs.10,000/- each with a default sentence to undergo simple imprisonment for a period of 3 months each under section 420 r/w. 34 of IPC. It was further ordered that the amount of fine shall be given to PW1 under section 357(1) of the Code of Criminal Procedure (Cr.PC).

¶60

Even though the aforesaid conviction and sentence was challenged by the Revision Petitioners in separate appeals viz. Crl.Appeal No.236/2020, Crl.Appeal No.156/2020 and Crl.Appeal No.106/2020, the said appeals were dismissed by a common order passed by the Court of Session, Palakkad on 19.3.2022. These Revision Petitions were submitted by the Revision Petitioners challenging the aforesaid judgments.

¶61

Heard Sri.M.R.Sasi, the learned counsel appearing for the Revision Petitioners in all the above Revision Petitions. Advocate Smt.Seena C., the learned Public Prosecutor appearing for the State and Smt. Silpa N.P., the learned counsel for the defacto complainant.

¶62

The challenge made in this Revision Petition is against the order of conviction and sentence and the judgments confirming the same based on a compromise arrived between the respective Revision Petitioners and the defacto complainant. In all these Revision Petitions, Crl.M.A.No.1/2022 have been filed for compounding the offence. In support of the aforesaid prayer in the

¶63

CRL.RP Nos.463,464 &465 of 2022 6 respective Crl.M.As, affidavits sworn by the defacto complainant were also submitted and vakalaths executed by the defacto complainant in favour of Adv Silpa N.P, were also filed along with the same.

¶64

The offence alleged against the petitioners are compoundable under section 320(2) of Cr.PC. The sub-section (5) of Section 320 of Cr.PC provides that when the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard. Sub-section (6) of section 320 further provides that a High Court or Court of Session acting in the exercise of its powers of revision under section 401 may allow any person to compound any offence which such person is competent to compound under this section. From the reading of the aforesaid sections, it is evident that, the powers of the court for compounding offence can be exercised even after the accused is convicted by a competent court. Section 320 of IPC does not indicate the stage at which an offence can be compounded. Thus, in the light of the statutory stipulations contained in section 320 of IPC, particularly in the light of the stipulations contained in sub-section 5 and 6 of section 320 of IPC, nothing would preclude the court from exercising the powers to grant permission to compound the offence even at post conviction stage. The view taken by me in this regard is fortified by

¶65

CRL.RP Nos.463,464 &465 of 2022 7 the decision of this court in Soban v. State of Kerala [2021(3) KHC 383].

¶66

When coming to the facts of this case, it can be seen that, the offence involved is under section 420 of IPC and the same was registered on the allegation that accused persons have collected an amount of Rs.95,000/- from the defacto complainant offering him to arrange him for a Visa. In this connection, it is discernible from the affidavit filed in support of the application for compounding that the defacto complainant have clearly stated that he had settled the matter voluntarily without any external pressure and compulsion. He further stated that he has no grievance against the accused persons and thus he supported the prayer to compound the prayer as against the petitioners herein. The learned counsel who filed vakalath for the defacto complainant confirms the aforesaid statement. The learned Public Prosecutor also upon instruction submitted that the veracity of the statement has been verified and found to be genuine. In such circumstances, taking into consideration of the fact that, the offence is compoundable in nature and the dispute is also a private dispute in which no public interest is involved, I am inclined to allow these Revision Petitions by accepting the affidavits filed by the defacto complainant .

¶67

In such circumstances, these Criminal Revision Petitions are allowed, the conviction and sentences imposed upon the petitioners

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CRL.RP Nos.463,464 &465 of 2022 8 by the Judicial First Class Magistrate Court, Pattambi on 27.02.2020 in C.C.No.1409/2012 and the confirmation of the said conviction and sentence passed by the Court of Session Palakkad in the common judgment dated 19.03.2022 passed in Crl.Appeal No.236/2020, Crl.Appeal No.156/2020 and Crl.Appeal No.106/2020 are hereby set aside. The petitioners are acquitted of all the charges.

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Sd/-

¶70

ZIYAD RAHMAN A.A. JUDGE

¶71

pkk

Ummer v. State of Kerala

Case brief

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Ummer v. State of Kerala

Case brief

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