IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.Rev.Pet.No. 350 of 2001() ----------------------------- CRA.35/1999 of I ADDL. SESSIONS COURT, PALAKKAD ST.2225/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- --------------------- SHAIK MUSTHAFA, S/O.MUTHU ROWTHER, AGED 34 YEARS, 11/211, THUNNAKKARA THERUVU, KOPPAM AMSOM, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): --------------- 1. N.VIJAYAKUMAR, S/O. NAPPANKUTTY MOOTHAN N.R.M.MANDIRAM, VADAKKANTHARA POST, PALAKKAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl..M.P. No.1557/2001 in Crl.R.P. No.350/2001 Dismissed 2-11-2009 Sd/-P.Q. Barkath Ali, Jude. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 350 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 2nd day of November, 2009 O R D E R Revision petitioner is the accused in S.T.Case No.2225 of 1997 on the file of the Judicial Magistrate of the First Class-II, Palakkad and the appellant in Crl.A. No.35 of 1999 on the file of the Court of Session, Palakkad Division. He was convicted for the offence punishable under sec.138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs.40,000/-, in default to undergo simple imprisonment for one month. On appeal by the accused, the lower appellate court confirmed his conviction but modified the sentence to fine of Rs.6,000/-, in default to undergo simple imprisonment for three months. 2. The case of the prosecution, as testified by the complainant as PW1 before the trial court and as detailed in the complaint, was that the accused borrowed Rs.30,000/- from him and issued cheque Ext.P1, drawn on Palakkad Branch of Vijaya Bank, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank, that in spite of notice Ext.P3 dated August 24, 1994, Crl.R.P 350/01 2 the accused did not re-pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P6 were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he denied the entire transaction. On the side of the accused, Ext.D1 was marked. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as afore said. On appeal by the accused, the conviction was confirmed, but the sentence was modified as aforesaid. The accused has come up in revision challenging his conviction and sentence. 4. When the appeal was pending before the lower appellate court, the parties had settled the matter, but during that period, the offence under section 138 of the Negotiable Instruments Act was not a compoundable offence. Therefore, the lower appellate court did not consider the settlement. Now after amendment, it has become a compoundable offence with the Crl.R.P 350/01 3 permission of the court. Therefore, permission is granted to compound the offence and the offence is compounded. That being so, the revision petition has to be allowed and the accused has to be acquitted. 5. In the result, the revision petition is allowed. The conviction and sentence imposed on the revision petitioner/accused by both the courts below are set aside and the revision petitioner is acquitted under section 320 Cr.P.C.. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mn Crl.R.P 350/01 4 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 350 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 2 nd day of November, 2009