IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 WP(C).No. 35065 of 2008(Y) -------------------------- CC.837/2006 of J.M.F.C.-I,HOSDRUG .................... PETITIONER: --------------- M.KUNHABDULLA, S/O.LATE MOIDEEN.M, AGED 45 YEARS, RESIDING AT S.T.H.MANZIL, MUTTUMTHALA, KOLAVAYAL POST, AJANOOR, KANHANGAD, KASARGOD DISTRICT, PIN 671 531. BY ADV. SRI.K.P.RAMACHANDRAN SRI.K.SABU RESPONDENT(S): --------------- 1. N.K.FOUSIYA, D/O.MOHAMMAD KUNJI, AGED 26 YEARS, RESIDING AT SAVATH MANZIL, PALLIPUZHA, PALLIKARA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. THE HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT, HOSDURG. ADV. SRI.K.P.HARISH FOR R1 R2 BY GOVT. PLEADER SRI. P.A. SALAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1 PHOTOSTAT COPY OF AGREEMENT DT.23.5.06 EXECUTED BETWEEN N.K. FOUSIYA AND M. HASSAINAR. EXT.P2 PHOTOSTAT COPY OF RECEIPT DT.23.7.06 ISSUED BY N.K. FOUSIYA. EXT.P3 PHOTOSTAT COPY OF AGREEMENT DT.27.7.06 EXECUTED BETWEEN M.K. FOUSIYA AND M. HASSAINAR. EXT.P4 PHOTOSTAT COPY OF COUNTER FOILS SHOWING RS.1,000/- IS CREDICTED BY M. HASSAINAR IN FAVOAUR OF N.K. FOUSIYA AS PER THE TERMS AND CONDITIONS AGREED IN THE AGREEMENT DT.23.5.06 AND 27.7.06. EXT.P5 PHOTOSTAT COPY OF PASS BOOK ENTRIES OF M. KUNHABDULLA THE PETITIONER SHOWING THE ENTRIES THEREIN FROM 2.3.06 TO 26.9.06. EXT.P6 PHOTOSTAT COPY OF STATEMENT OF ACCOUNT OF SRI.SIDDIQUE ISMAIL M.T. FOR THE PERIOD FROM 1.2.05 TO 24.12.07. EXT.P7 PHOTOSTAT COPY OF THE CERTIFICATE DT. 27.9.08 ISSUED BY THE GENERAL SECRETARY, MUTTUMTHALA MUSLIM JAMA-ATH COMMITTEE. /TRUE COPY/ R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - W.P.C.No. 35065 of 2008 Y - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of January, 2009 JUDGMENT The petitioner is the second accused in a prosecution under Section 498A I.P.C. Cognizance has been taken on the basis of the final report submitted by the police after due investigation. Altogether there are three accused persons. The first accused is the brother of the petitioner and he is the husband of the defacto complainant. The sister of the petitioner is arrayed as the third accused. Cognizance has been taken. Trial is in progress. At this juncture the petitioner has come before this Court to contend that the disputes between the parties have really been settled and there is an agreement to withdraw, settle and compound this pending prosecution under Section 498A I.P.C. The petitioner relies on the agreements allegedly executed between the first accused and his wife and also certain documents to prove payment of amounts. W.P.C.No. 35065 of 2008 2 2. The defacto complainant/wife has appeared before this Court through counsel. The counsel contends that there has been no bonafide or genuine agreement at all. The documents relied on by the petitioner are not true, just or genuine. They have not been entered into voluntarily. There has been no real settlement of the disputes. In these circumstances, on the basis of the alleged and disputed settlement/agreement proceedings may not be quashed, submits the counsel for the respondent. The counsel for the respondent/defacto complainant further submits that the trial has already commenced and has reached an advanced stage. It is not necessary at this juncture to interfere with the trial that is already in progress. 3. Arguments have been heard. The short question is whether there has been a true, valid, genuine and truthful agreement. Even if such agreement is there, the offence under Section 498A I.P.C. being non-compoundable, the petitioner cannot on the basis of such an agreement alone pray for quashing of proceedings. Of course the decision in B.S. Joshi v. State of Haryana (AIR 2003 SC 1386) held that if the court is satisfied that there has been a genuine and harmonious settlement, powers under Article 226 of the Constitution W.P.C.No. 35065 of 2008 3 or Section 482 Cr.P.C. can be invoked to quash the proceedings. 4. In the instant case, there is dispute as to whether the parties have settled their differences as a matter of fact. The petitioner relies on certain documents. The respondent/defacto complainant denies the same. At any rate, I am not satisfied on the basis of the disputed assertion that the disputes have been settled. It is not necessary for me to invoke the dictum in B.S. Joshi (supra) and quash the proceedings using the powers under Article 226 of the Constitution. Whether there has been a proper and genuine settlement of the dispute or not cannot certainly be decided in proceedings under Article 226 of the Constitution when the rival contestants are taking diametrically opposing stand. In any view of the matter, I am satisfied that powers under Article 226 of the Constitution does not deserve to be invoked. This Writ Petition is accordingly dismissed. (R. BASANT) Judge tm