IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 Crl.Rev.Pet.No. 624 of 2001(C) ----------------------------- CRA.152/1998 OF SESSIONS COURT, KOLLAM CC.269/1997 OF JFCM, SASTHAMCOTTA. .................... REVN. PETITIONER: ---------------------------- GOPALAKRISHNA PILLAI, RESIDING AT PADMAVILASAM, PATHARAM, KIDANGAYAM NADUVIL, SOORANADU SOUTH, KOLLAM. BY ADV. SRI.V.CHITAMBARESH SRI.SHAMIER MARICKAR RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. R. KUNJUKRISHNA PILLAI, RESIDING AT MANJULALAYAM, SASTHAMCOTTA, KOLLAM. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 624 /2001(C) ORDER ON CRL. M.P. NO.3010 OF 2001 IN CRL. R.P. NO.624 OF 2001 DISMISSED SD/- 24/09/208 THOMAS P. JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE scm THOMAS P. JOSEPH, J -------------------------- CRL. R.P.NO. 624 OF 2001 --------------------------------- Dated this the 24th day of September, 2008 O R D E R The Revision Petitioner was convicted by the learned Magistrate for the offence punishable under Section 138 of the Negotiable Instrument Act (N.I. Act), sentenced to pay a fine of Rs. 30,000/- and in default of payment to undergo Simple Imprisonment for three months. He preferred an appeal in the Sessions Court. While the appeal was pending, the 1st respondent filed a memo dated 28.3.2001 stating that the matter was settled between him and the Revision Petitioner, he has no further complaint in the matter and hence he has no objection in allowing the appeal. The learned Sessions Judge did not act upon that memo and disposed of the appeal modifying the sentence to fine of Rs. 3,000/-. The Revision Petitioner is aggrieved and has come up in Revision. 2. Heard the counsel for the Revision Petitioner. There is no representation for the 2nd respondent. The learned counsel submitted that the appellate court should have, acting on the memo Crl.R.P. No. 624/2001 -2- dated 28.3.2001 granted leave to compound the offence and acquitted the Revision Petitioner under Section 320(8) of the Code of Criminal Procedure. 3. Under Section 320(5) of the Code of Criminal Procedure, composition of the offence in the appeal can be done only with the leave of that court. Therefore, the 2nd respondent was bound to obtain the leave of the appellate court to compound the offence. Though, a separate application was not filed by the 2nd respondent, in the nature of the statement contained in the memo dated 28.3.2001 that could have been taken as request made by the 2nd respondent to the appellate court to grant leave. 4. Though the offence was committed before the introduction of Section 147 of the Negotiable Instrument Act, which permitted composition of offence under Section 138, since the matter was pending in appeal at the time of the amendment of the Act, the benefit of Section 147 is applicable to this case as well as held by the Division Bench of this Court in Sudheer Kumar v. Kunhiraman (2008 (1) KLT 168) . Therefore, it was justifiable for the appellate court to grant permission to the 2nd respondent to compound the offence. The Revisional Court has the power to do Crl.R.P. No. 624/2001 -3- what the appellate should have done in the matter. Therefore permission is granted to the 2nd respondent to compound the offence. The composition is accepted and shall have the effect of acquittal of the Revision Petitioner under Section 320 (8) of the Code of Criminal Procedure. The bail bond executed by the Revision Petitioner will stand cancelled. THOMAS P. JOSEPH, JUDGE. vkm