IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 CRL.REV.PET.NO. 2674 OF 2009() -------------------------------------------- CRA.7/2007 OF ADDL. SESSIONS COURT-II, MAVELIKKARA CC.169/2001 OF JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------- REJI, S/O.MAMMEN KOSHY, KALEECKAL HOUSE (VALUTHUNDIYIL), MELEKOZHUR, MANARAKULANJI, PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDITIONAL RESPONDENT IMPLEADED: ------------------------------------------------------ 2. SREE GOKULAM CHIT FINANCE CO. PVT. LTD., REGISTERED OFFICE AT MUTHUGRAMANI STREET, CHENNAI - 600 004, HAVING ITS BRANCH OFFICE AT CHIRAMEL BUILDING, BETHEL JUNCTION CHENGANNUR, ALAPPUZHA DISTRICT REPRESENTED BY ITS MANAGING DIRECTOR MR. A.M. GOPALAN, BY HIS POWER OF ATTORNEY HOLDER, MR. JAMES PHILIP, S/O. C.K. PHILIP, LEGAL CLERK, SREE GOKULAM CHIT AND FINANCE CO. PVT. LTD., CHIRAMEL BUILDING, BETHEL JUNCTION, CHENGANNUR. BY PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN ADV. SMT.LATHA SUSAN CHERIAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2674 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of August, 2009 O R D E R -------------- Heard counsel for petitioner, Public Prosecutor and counsel for additional respondent No.2. 2. This revision is in challenge of judgment of learned additional sessions judge, Mavelikkara in Crl. No.7 of 2007 confirming conviction and sentence of petitioner for offences punishable under Sections 406 and 477 of the Indian Penal Code (for short, “the IPC”). Case is that petitioner while working as Manager of additional respondent No.2, a Private Limited Company engaged in conducting Kuries, encashed 17 cheques for Rs.11,62,500/- by forging signature of the payees thereunder and misappropriated the said amount. It is the further case of additional respondent No.2 that petitioner misappropriated Rs.64,200/- collected from subscribers but did not remit that amount with additional respondent No.2. Learned magistrate before whom petitioner was tried found him guilty and sentenced for various periods. That conviction and sentence were confirmed by the learned sessions Judge. 3. Petitioner and additional respondent No.2 have filed Crl.M.A. No.8183 of 2009 reporting that the dispute has been settled CRL. R.P. No.2674 of 2009 -: 2 :- between petitioner and additional respondent No.2 outside court and seeking permission of this court to compound the offences. Additional respondent No.2 filed O.S.No.194 of 2003 in the Subordinate Judge's Court, Mavelikkara against petitioner for realisation of the amount allegedly misappropriated by petitioner and involved in this case. It is submitted by counsel on both sides that the Civil Suit has also been settled between the parties and disposed of in accordance with that settlement. Learned counsel for petitioner has produced for my perusal a copy of the compromise petition dated 24.1.2008 signed by petitioner and additional respondent No.2 and copy of the judgment dated 25.1.2008 dismissing the Suit as per that settlement. 4. Learned counsel has placed before me the decisions of the Apex Court in Central Bureau of Investigatin v. Duncans Agro Industries Ltd. (1996) 5 SCC 591, Nikhil Merchant v. CBI (2008 (3) KLT 769 (SC) and Madan Mohan Abbot v. State of Punjab (200) 4 SCC 582). In these decisions power of the High Court to quash proceedings under Section 482 of the Code of Criminal Procedure (for short, “the Code”) even when non-compoundable offence are involved when the parties have settled the dispute outside court is stated. It is stated that technicalities should not stand in the way of the High Court interfering with such matters when it is shown that dispute has been settled between the partis. It is to be borne in CRL. R.P. No.2674 of 2009 -: 3 :- mind that in those cases proceeding had not culminated in conviction and sentence. On going through the decisions cited supra it is seen that it is when proceedings were pending investigation or trial that power under Sec.482 of the Code was invoked keeping in mind that there was no possibility of adducing evidence in support of the complaint in the light of settlement. In this case that stage is over and there is a conviction and sentence which are confirmed by the appellate court. Offence punishable under Sec.477 of the IPC is not compoundable. So far as offence under Sec.406 of the IPC is concerned since the amount misappropriated exceeded Rs.250/-, that offence also cannot be compounded even with the permission of court. Therefore request for composition of the offences cannot be allowed. In the facts and circumstances of the case there is no reason to interfere with the conviction of petitioner. 5. However, fact of settlement of the dispute between parties and even the settlement of the Civil Suit are matters which this Court can look into while considering the extent of sentence. Petitioner is now sentenced to undergo simple imprisonment for 3 years each under Secs.406 and 477 of the IPC. There is also a sentence of fine of Rs.5,000/- under Sec.477 of the IPC. Having regard to the facts and circumstances of the case and considering the compromise as above stated, I am satisfied that simple imprisonment CRL. R.P. No.2674 of 2009 -: 4 :- till rising of the court for offence under Sec.406 of the IPC and simple imprisonment till rising of the court and fine of Rs.1,000/- under Sec.477 of the IPC is sufficient in the ends of justice. Resultantly, this revision petition is allowed in part to the following extent: (i) Sentence imposed on petitioner under Sec.406 of the IPC is modified as simple imprisonment till rising of the court. (ii) Sentence imposed on petitioner under Sec.477 of the IPC is modified as simple imprisonment till rising of the court and fine of Rs.1,000/- (Rupees One thousand only) and in default to undergo simple imprisonment for two weeks. (iii) Substantive sentence awarded to the petitioner will run concurrently. (iv) Petitioner is granted time till 17.9.2009 to deposit fine in the trial court. Petitioner shall appear in the trial court on 18.9.209 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv