IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 Crl.Rev.Pet.No. 454 of 2010() ----------------------------- CRA.447/2006 of ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA CC.175/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER(S): REVN.PETITIONER/APPELLANT IN CRA/ACCUSED IN CC ------------------------------------------------------------------- KUNJUMON V.K., AGED 75 YEARS, VADAKKAN VEEDU, KAVIKKADAVA, KODNGALLOOR P.O., THRISSUR DISTRICT. BY ADV. SRI.AJITH MURALI RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. V.K.SUMATHY, SREEHARI, 1ST FLOOR, KEEZHCERIMEL, CHENGANNUR VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT. ADV. SRI.P.V.DILEEP FOR R2 P.P.SRI.P.R.JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.454 of 2010 ------------------------------- Dated this the 9th day of February, 2010 ORDER This revision petition is directed against the judgment dated 17.8.2006 in C.C.No.175/2004 of the Judicial First Class Magistrate Court-I, Chengannur by which the revision petitioner is convicted under Section 420 and 468 of IPC and accordingly, he is sentenced to undergo simple imprisonment for one year each under Section 420 and 468 IPC and to pay a fine of Rs.1,000/- each. The default sentence is fixed as simple imprisonment for one month. Aggrieved by the above judgment, the revision petitioner in an earlier occassion approached the Sessions Court, Mavelikara by filing Crl.A.447/2006, but by judgment dated 18.12.2007 of the Court of Additional Sessions Judge, Fast Track (Adhoc), Mavelikara, dismissed the appeal and confirmed the conviction and sentence. It is the above judgments, conviction and sentence challenged in this revision petition. 2. The second respondent is the complainant. Allegation raised against the revision petitioner as well as his wife who is the 2nd accused is that with an intention to deceive and to obtain 2 unlawful gain they approached the complainant and borrowed an amount of Rs.1,00,000/-(Rupees one lakh only) and issued a cheque towards the discharge of the above legally enforceable debt. When the cheque was presented for collection it was dishonoured with a memo stating that there is no sufficient fund in the account of the accused. Therefore, the complainant/the second respondent approached the court by filing a private complaint under Section 138 of the Negotiable Instruments Act. During the trial of the said complaint, according to the complainant, it was disclosed that the revision petitioner is not the account holder of Ext.P1 cheque and therefore the first complaint was withdrawn. Thereafter the present complaint was filed against the revision petitioner as well as his wife alleging offences punishable under Sections 465, 468, 471 and 109 of IPC read with Section 34 IPC. 3. Thus on the basis of the complaint and the sworn statement of the second respondent, C.C.No.175/2004 was instituted in the trial court and the case proceeded further. Finally on the basis of the evidence and materials on record, the trial court found that the second accused was not guilty, who is 3 wife of the revision petitioner, but the revision petitioner is found guilty of the offence under Section 420 and 468 of IPC alone and accordingly, he is convicted for the said offences. As the wife of the revision petitioner was not found guilty, she was accordingly acquitted. It is upon such conviction against the revision petitioner the above sentence was imposed, which was confirmed in the appeal at the instance of the revision petitioner. 4. During the pendency of this revision petition, the learned counsel submitted that the matter was settled out of court between the revision petitioner and the second respondent the complainant. Accordingly, they filed a compounding petition, i.e, Crl.M.A.1365/2010. The said petition is signed by both the revision petitioner as well as second respondent and counter signed by their respective counsels. 5. I have heard learned counsel for the petitioner, counsel for the second respondent and also the learned Public Prosecutor. 6. Section 420 and 468 IPC are not scheduled offences for compounding. Therefore, no order can be passed allowing the compounding petition. The learned counsel invited my attention 4 to the decision of the Hon'ble Supreme Court in Nikhil Merchant v. Central Bureau of Investigation (2008(3) KLT 769). I have gone through the said decision, which according to me is not applicable in the present case. In the said decision the Apex Court has held that the technicalities shall not be stand in the way for compromising the dispute between the parties and further held that even in an offence involved which are not compoundable can be permitted to compound and compromise under Section 482 of Cr.P.C. In the present case the challenge is against conviction and sentence ordered by the courts below against the revision petitioner for the above offences, which are not compoundable. By invoking the revisional jurisdiction of this court the non-compoundable offences cannot be permitted to compound. It is true that the compounding petition is filed under Section 482 of Cr.P.C. If that petition is entertained and allowed that will amount to deviation from the revisional jurisdiction of this court and to allow compounding offences which are specifically excluded from the purview of Section 320 of Cr.P.C. No authority is cited so as to issue an order permitting the parties to compound non-compoundable offences 5 in a proceedings initiated by invoking the revisional jurisdiction of this court. Therefore, the prayer for compounding the offences impermissible and cannot be allowed. 7. However, it is brought to the notice of this court that, the matter has been settled out of court and the second respondent complainant had compensated for the alleged offence committed by the revision petitioner and as such the second respondent is not interested in further proceeding against the revision petitioner. 8. Admittedly the cheque in question was issued connected with the transaction between the sons of the revision petitioner as well as the complainant. According to the second respondent, the incident in which their son were involved was taken place on 1.8.2000 and the cheque in question was issued on 25.5.2001. The trial court convicted the revision petitioner based upon the evidence of the defacto complainant who was examined as Pws.1 and 2 and other witnesses. Out of the above three witnesses apart from the evidence of the complainant, there is no acceptable evidence to connect the accused with the alleged offence. The trial court is very much relied upon the evidence of 6 PW.3 who is a close neighbour to the complainant. Therefore, it can be seen that apart from the interested evidence of PW3, there is no independent evidence to render credibility for the evidence of PW1. 9. It is also relevant to note that the trial court has found that the accused has no specific defence regarding the alleged transaction and the defence was divergent and conflicting and therefore according to the trial court the above conflicting version of the defence itself is sufficient to hold that the case of the complainant is correct. Going by the judgments of the courts below, it appears that there was some dispute or transaction between the son of the complainant on one side and the son of the revision petitioner on the other side and the cheque in question was issued connected with the said transaction. From the evidence of PW1 and allegation of the second respondent as disclosed from her first complaint, it can be seen the respondent has no case that the accused were having any intention to cheat the complainant. It is because of that reason, no prosecution was launched against the revision petitioner for the above offence, but on the other hand as usual course, she opted to 7 approach the trial court by filing a complaint under Section 138 of the Negotiable Instruments Act for the purpose of realising the amount from the revision petitioner which was due as per the cheque in question. Absolutely there is no evidence on record to show that the revision petitioner has got any intention at the time of giving the cheque in question and admittedly at the time of issuing the cheque there was no other transaction. It is also on record that the transaction was between the children of the contesting parties that was on 1.8.2000. So it cannot be stated that the subsequent issuance of cheque that on 25.5.2001, was based upon the alleged transaction on 1.8.2000. So the parting of property or document was not on the basis of the cheque that issued on 1.8.2000. So no intention, which is the essential ingredients of Section 419 and 420 of IPC, can be gathered at the time of giving the cheque. In the light of the above facts and circumstances of the case, I am of the view that the finding of the court below, namely the trial court as well as the appellate court are absolutely against the facts and circumstances involved in the case and also the evidence on record. Therefore, no offence under Section 420 and 468 is 8 made out against the petitioner and consequently the revision petitioner is entitled to get an acquittal and hence the impugned judgments are liable to be set aside. In the result, this revision petition is allowed, setting aside the judgments of the court below and also the conviction and sentence imposed against the revision petitioner and accordingly he is acquitted. Thus the above Crl.Revision Petition is allowed. V.K.Mohanan, Judge cms