IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 CRL.REV.PET.NO. 1784 OF 2009() ------------------------------ CRA.86/2007 OF ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA CC.199/2003 OF JUDL.MAGISTRATE OF FIRST CLASS-II, MANANTHAVADY .................... REVN. PETITIONER(S) - APPELLANTS - ACCUSED: ------------------------------------------------------------- 1. RAJESH, S/O. KRISHNANKUTTY, AGED 35 YEARS, KOLLAMKUNNEL VEEDU, PLAVELICHAM, BAVALI, WYNAD. 2. K.P. MOHANAN, S/O. RAMAN, AGED 28 YEARS, THEKKETHARA VEEDU, PLAVELICHAM, BAVALI, WYNAD. BY ADV. SRI.JIJI THOMAS SMT.SMITHA JIJI PAMBACKAL RESPONDENT(S) RESPONDENT - COMPLAINANT & STATE: ------------------------------------------------------------------------- 1. K.A. JOSE, S/O. ABRAHAM, AGED 46 YEARS, KAVALANAL VEEDU, VIMALANGAR P.O., MANATHAVADY, WYNAD. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN SRI.VIJAI MATHEWS FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1784 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 7th day of August, 2009 O R D E R -------------- Heard counsel on both sides and Public Prosecutor. 2. This revision is in challenge of judgment of learned additional Sessions Judge (Adhoc-II), Kalpetta in Crl. Appeal No.86 of 2007 confirming conviction and sentence of petitioners for offence punishable under Sections 420 and 468 read with 34 of the Indian Penal Code (for short, “the IPC”). During the pendency of revision, petitioners and respondent No.1 settled the dispute between them and filed Crl.M.A.No.5450 of 2009 seeking permission to compound the offence. 3. Case is that on 31.10.2002 petitioners approached respondent No.1 with a request for a loan of Rs.34,000/- to petitioner No.1. Respondent No.1 accepted that request. At that time, for repayment of the amount petitioner No.1 issued a cheque (Ext.P2). Respondent No.1 presented that cheque for encashment but it was returned for the reason that signature of the account holder differs. On enquiry it was revealed that the cheque was actually drawn on the account maintained by petitioner No.2. Thereon complaint was CRL. R.P. No.1784 of 2009 -: 2 :- preferred for offences as stated above. Police after investigation submitted final report. Leaned magistrate found that petitioners committed offences as alleged. That has been confirmed by the appellate court. 4. So far as offence under Section 420 of the IPC is concerned that offence is compoundable with permission of the court at the instance of the person deceived. In this case respondent No.1 who is deceived has come forward for composition of the offence. I have gone through the application and find no reason to think that the composition is not voluntary. Permission to compound the offence to the extent it concerned offence under Sec.420 of the IPC can be granted. Hence Crl.M.A. No.5450 of 2009 shall stand allowed to that extent. 5. So far as offence under Sec.468 of the IPC is concerned that offence is not compoundable. Learned counsel placed reliance on the decision of the Supreme Court in Nikhil Merchant v. Central Bureau of Investigation (2008 (3) KLT 769 (SC) to contend that even if offence under Sec.468 is not compoundable this Court can exercise its power under Section 482 of the Code of Criminal Procedure. Decision cited by learned counsel concerned quashing of proceeding at the stage of investigation involving CRL. R.P. No.1784 of 2009 -: 3 :- offences which are not compoundable invoking Sec.482 of the Code. In that case Supreme Court was satisfied that in view of the settlement between the parties there is no possibility of evidence being let in support of prosecution. In this case there is a concluded finding against petitioners on the strength of evidence let in by the prosecution. So far as offence under Sec.468 of the IPC is concerned there is sufficient evidence to show that petitioners jointly approached respondent No.1 requesting loan of Rs.34,000/- for petitioner No.1 and for repayment of that amount Petitioner No.1 issued Ext.P2, cheque which is proved to be on the account maintained by petitioner No.2. That amounted to forgery of the instrument as defined in Sec.465 of the IPC punishable under Sec.468 of the IPC. There is no reason to interfere with the conviction of petitioners under Sec.468 read with 34 of the IPC. However in considering whether sentence awarded is excessive the settlement reached between petitioners and respondent No.1 can be taken into account. Respondent No.1 has no grievance now. Learned counsel submits that amount payable to respondent No.1 has already been paid. 6. I have allowed composition of the offence under Sec.420 of the IPC. In these circumstances I am satisfied that simple CRL. R.P. No.1784 of 2009 -: 4 :- imprisonment till rising of the Court will be sufficient in the ends of justice so far as offence under Sec.468 of the IPC is concerned. Sentence for that offence is modified accordingly. Resultantly, revision petition is allowed in part. Composition entered between petitioners and respondent No.1 regarding the offence under Sec.420 of the IPC is accepted and that shall have effect of acquittal of petitioners of that offence under Sec.320(8) of the Code. So far as offence under Sec.468 of the IPC is concerned sentence awarded under that Section is modified as simple imprisonment till rising of the court. Petitioners shall appear in the trial court on 7.9.2009 to receive the sentence. Until then execution of warrant against petitioners will stand in abeyance. Criminal Miscellaneous Application No.5449 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv