IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 CRL.REV.PET.NO. 1589 OF 2009() --------------------------------------------- CRA.478/2006 OF II ADDL. SESSIONS COURT, THRISSUR CC.744/2001 OF JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------------------- BASTIN,S/O.PETER, ACQUA HATCH SHRIMP HATCHERY, PALLITHODU ROAD,THURAVUR P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.T.MADHU SRI.P.O.THOMAS RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------------------------- 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. M/S.SEA VIEW PRAWN HATCHERIES PVT.LTD., THALIKKULAM P.O.,REP.BY ITS MANAGING DIRECTOR GEORGE PATTANI,S/O.JOSEPH PATANI, PATANI HOUSE,MARATHAKKARA P.O., THRISSUR DISTRICT. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1589 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of May, 2009 O R D E R -------------- Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision which is l not prejudicial to respondent No.2. 2. Judgment of learned Additional Sessions Judge, Thrissur in Crl.Appeal No.478 of 2006 confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”), substantive sentence and direction for payment of compensation but modifying the default sentence for non-payment of compensation to one month as against three months awarded by the trial court is under challenge in this revision at the instance of the accused. 3. Respondent No.2 is a Private Limited Company represented by its Managing Director. It is the case of respondent No.2 that petitioner used to purchase prawns from the Company and for the sum of Rs.94,690/- due from the petitioner, he issued the cheque which was dishonoured for insufficiency of funds based on which a case was filed against the petitioner for offence punishable under Sec.138 of the Act as S.T. No.180 of 1998. While so, there was an out of court settlement between petitioner and respondent No.2 on CRL. R.P. No.1589 of 2009 -: 2 :- 23.8.2000 and pursuant to that, the said complaint was withdrawn. As part of the agreement on 23.8.2000 petitioner paid Rs.24,690/- to respondent No.2 and for the balance amount he issued cheque dated 25.9.2000 for Rs.25,000/- and Ext.P1, cheque dated 27.12.2000 for Rs.45,000/-. Cheque for the sum of Rs.25,000/- was dishonoured concerning which which respondent No.2 filed C.C. No.1119 of 2000. Exhibit P1, cheque dated 27.12.2000 for Rs.45,000/- also met with the same result and in spite of dishonour intimation and demand for payment, petitioner did not pay the amount. Hence respondent No.2 filed this case against the petitioner. Managing Director of respondent No.2 gave evidence as P.W.1 and proved Exts.P1 to P7. Contention raised by the petitioner when questioned under Section 313 of the Code of Criminal Procedure (for short, “the Code”) is that he had discharged the whole liability and that no further amount is due from him. Courts below on evidence found that the plea of discharge is not proved or probabilised by the petitioner and found him guilty under Sec.138 of the Act. Learned counsel contended that execution of the cheque is not proved and at any rate the amount covered by the cheque is not legally recoverable as it was meant to stifle prosecution of S.T. No.180 of 1998. Learned counsel placed reliance on the decision of the Apex Court in V.Narasimharaju v. CRL. R.P. No.1589 of 2009 -: 3 :- Gurumurthyraju (AIR 1963 SC 107) and particularly the observations contained in paragraph 8 of that judgment. 4. I shall come to the legal issue raised by the learned counsel a bit later. It is not disputed by the petitioner that against him respondent No.1 filed S.T. No.180 of 1998 and following an out of court settlement that case was withdrawn. According to respondent No.2 it was as part of that out of court settlement which resulted in withdrawal of S.T. No.180 of 1998 that petitioner issued Ext.P1, cheque for Rs.45,000/-. That Ext.P1 is a cheque signed by the petitioner and drawn on his account is not disputed by the petitioner. Its dishonour for insufficiency of funds and service of notice on the petitioner are proved by Exts.P2 to P6. Though petitioner has a contention that he paid the entire amount at the time of settlement on 23.8.2000, that is not substantiated. Petitioner has no case that he has replied to the notice served on him. When signature is admitted or proved that went a long way in proving due execution of the cheque. Nothing is brought out to disbelieve the evidence of P.W.1 regarding the transaction and execution of the cheque which is not even seriously disputed. Courts below accepted the evidence of P.W.1 as to the due execution of the cheque and the circumstances which resulted in its execution. I find no reason to interfere with that finding CRL. R.P. No.1589 of 2009 -: 4 :- in revision. 5. Now I shall come to the contention based on the decision in Narasimharaju's case. There, in paragraph 8 of the judgment the Apex Court observed that Sec.23 of the Contract Act provided that every agreement of which the object or consideration is unlawful is void. It is also stated that if a person sets the machinery of the criminal law into action on the allegation that the opponent has committed a non-compoundable offence and by the use of the coercive criminal process he compels the opponent to enter into an agreement, that agreement would be treated as invalid for the reason that consideration is opposed to public policy. Argument of the learned counsel precisely is that at a time when the offence under Sec.138 of the Act was not compoundable, case (S.T. No.180 of 1998) was settled in consideration of the agreement entered into between petitioner and respondent No.2 out of court and since it was as part of that agreement that Ext.P1 was issued, that cheque is not enforceable. I am afraid, I cannot accept that argument. Assuming that offence under Sec.138 of the Act was not compoundable as on 25.8.2000 when S.T. No.180 of 1998 was withdrawn consequent to the out of court settlement between petitioner and respondent No.2, it is not disputed and Sec.257 of the Code informs me that it was legally CRL. R.P. No.1589 of 2009 -: 5 :- permissible for respondent No.2 to withdraw the complaint on satisfying the learned magistrate that there was sufficient ground to permit it to do so. That precisely is what was done by respondent No.2 in the matter of S.T. No.180 of 1998, reason which persuaded respondent No.2 to do so being that there was a settlement between himself and the petitioner as per which a portion of the amount was paid and for the balance amount two cheques including Ext.P1 were issued. Stifling prosecution is entirely different from a complainant, with the permission of the court concerned 'withdrawing complaint' as permitted by law for valid reasons. I am unable to understand that the agreement between petitioner and respondent No.2 and the consequent withdrawal of the complaint is forbidden by any law, is fraudulent, involved or implied injury to the person or property of others, is opposed to public policy or is illegal, to describe that transaction as one under Sec.23 of the Contract Act to hold that the amount covered by Ext.P1 is not legally recoverable. Contention raised by the petitioner necessarily has to fail. I do not find any illegality, irregularity or impropriety in the courts below holding that petitioner issued the cheque in discharge of the legally recoverable debt and has committed the offence under Sec.138 of the Act. 6. Sentence awarded and direction for payment of CRL. R.P. No.1589 of 2009 -: 6 :- compensation ordered by learned magistrate as confirmed by learned Additional Sessions Judge is legal and proper and required no interference. At this stage counsel for petitioner requested for three months' time to deposit the compensation in the trial court. Considering the circumstances stated by the learned counsel and the amount involved, I am inclined to grant two months' time from this day to deposit the compensation in the trial court. Resultantly, this revision fails and it is dismissed. Petitioner is granted two months' time from this day to deposit the compensation as awarded by the courts below, in the trial court. Petitioner shall appear in the trial court on 27.7.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv