Alliance Habitate & Real Estate India Pvt. Ltd. v. Shabeerali and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939** **Crl.Rev.Pet.No. 601 of 2017 ()** **------------------------------AGAINST THE JUDGMENT IN CRL.A. NO. 485/2015 OF ADDL. DISTRICT & SESSIONS COURT - IV, KOZHIKODE DATED 31-01-2017. AGAINST THE JUDGMENT IN ST. NO.844/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THAMARASSERY DATED 16-11-2015.** **........** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED NOS. 1 & 2:** **------------------------------------------------------------------------------------------** **1. M/S. ALLIANCE HABITATE & REAL ESTATE INDIA PVT. LTD. 32/3007, B2 AYSHA ROAD, ANCHUMURI, VAITTILA P.O., ERNAKULAM, REPRESENTED BY ITS MANAGING DIRECTOR, JITTO JOSEPH.** **2. JITTO JOSEPH,** - **AGED 44 YEARS, MANAGING DIRECTOR, M/S ALLIANCE HABITATE & REAL ESTATE INDIA PVT. LTD., 32/3007, B2 AYSHA ROAD ANCHUMURI, VAITTILA P.O., ERNAKULAM.** ## **BY ADV. SRI.IEANS.C.CHAMAKKALA.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **-----------------------------------------------------------------------** **1. SHABEERALI, AGED 41 YEARS, S/O. ALI, THENGAKOOTTIL, ELETTIL, KOZHIKODE DISTRICT-673 001.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682 031.** - **R1 BY ADV. SRI. K.A.SALIL NARAYANAN R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12-07-2017, ALONG WITH CRL.RP. NO. 602 OF 2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## ALEXANDER THOMAS, J. ================== Crl.R.P.Nos.601 & 602 of 2017 ================== Dated this the 12[th] day of July, 2017 ## O R D E R The petitioners in Crl.R.P.No.601/2017 are accused 1 and 2 in S.T.No.844/2011 on the file of the Judicial First Class Magistrate's Court-I, Thamarassery, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of a complaint filed by the 1[st] respondent herein. The cheque amount involved in that case is for Rs.16 lakhs. The trial court as per the impugned judgment rendered on 16.11.2015 had convicted the petitioners for the said offence and A-2 was sentence to undergo simple imprisonment for one year and to pay fine of Rs.27,50,000/- and in default, A-2 was ordered to undergo simple imprisonment for a further six months and the fine amount, so realised was directed to be given as compensation to the complainant in terms of Sec.357(1)(b) of the Cr.P.C. The appellate court as per the impugned judgment rendered on 31.1.2017 in Crl.Appeal No. 485/2015 on the file of the Court of the Addl. Sessions Judge-IV, Kozhikode, has confirmed the conviction and has reduced the substantive sentence to imprisonment till the rising of the court and has also reduced the fine amount to Rs. 24,64,000/- with a default sentence clause of 6 months. 2. The petitioners in Crl.R.P.No.602/2017 are accused No.1 and Crl.R.P.601/17 & cc. - : 2 :- 2 in S.T.No.845/2011 on the file of the abovesaid trial court for the same offence instituted on the basis of a complaint filed by the same complainant. The cheque amount in that case is for Rs.1,09,110/-. The trial court, as per the impugned judgment rendered on 16.11.2015, had convicted the petitioners for the said offence and has sentenced A-2 to undergo simple imprisonment for one year and has ordered that A-1 and A-2 will pay fine of Rs.1.97 lakhs and in default, A-2 was ordered to undergo simple imprisonment for 3 months and the fine amount, so realised was directed to be given as compensation to the complainant under Sec. 357(1)(b) of the Cr.P.C. The appellate court has confirmed the said conviction as per the impugned judgment dated 31.1.2017 of the Court of Addl. Sessions Judge, Kozhikode, but has reduced the substantive sentence to imprisonment till the rising of the court and has also reduced fine amount to Rs.1,68,000/-. The default sentence clause is for 3 months' simple imprisonment. 3. The parties in these two complaints are the same. Though the trial court has rendered separate judgments on the same day and the appeals have also been disposed separately but on the same day. Accused No.3 in both the complaints is the mother of A-2 and since she had not participated in the trial, the case against her was split up and refiled as S.T.Nos.656 and 657 of 2015 on the file of the abovesaid trial court. It is challenging the abovesaid concurrent verdicts of both the Crl.R.P.601/17 & cc. - : 3 :- courts below that the petitioners have preferred the instant revision petitions. 4. Heard Sri.Ieans.C.Chamakkala the learned counsel appearing for the revision petitioners (accused), Sri.K.A.Salil Narayanan, learned counsel appearing for R-1 (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State, in both these cases. 5. As requested by both sides, the parties were referred for mediation through the Kerala State Mediation and Conciliation Centre, Ernakulam, attached to this Court. Now it is reported by the learned Advocates appearing on both sides that the parties could successfully finalise the mediated settlement. The original of the memorandum of the mediation agreement dated 3.7.2017 has also been made available by the Mediation Centre, and the said agreement reads as follows: “MEMORANDUM OF SETTLEMENT FILED UNDER SECTION 89 OF THE CODE OF CIVIL PROCEDURE READ WITH RULES 24 & 25 OF THE CIVIL PROCEDURE (ALTERNATIVE DISPUTE RESOLUTION), RULES, 2008: Both parties agreed for settling the two cases on the following terms and conditions: 1. The 2[nd] petitioner and 1[st] respondent have agreed to settle for a total amount of Rs.23,00,000/-(Twenty Three lakhs only). 2. The 2[nd] petitioner agreed to pay the 1[st] installment of Rs.7,50,000/-(Rupees Seven lakhs Fifty thousand only) on or before 15.09.2017, which is agreed upon by the 1[st] respondent. 3. The 2[nd] petitioner agrees to pay the balance amount of Rs.15,50,000/-(Rupees Fifteen lakhs Fifty Thousand only) on or before 31.12.2017 which is also agreed upon by the 1[st] respondent. 4. The 1[st] respondent agrees to withdraw S.T.No.656/2015 and S.T.No.657/2015 pending against the 3[rd] accused (Thankamma Joseph) before the Judicial 1[st] Class Magistrate Court, Thamarassery on receipt of the entire amount. Crl.R.P.601/17 & cc. - : 4 :- 5. Both parties agreed that if the amount is not paid by the 2[nd] petitioner as per the terms of the agreement, the judgment of the appellate court will revive. Dated this the 3[rd] day of July, 2017. Revision Petitioner 1[st] Respondent Sd/JITTO JOSEPH M/s. Alliance Habitate & Real Sd/Estate India Pvt. Ltd. Shabeerali Sd/Counsel for the Revision Petitioner Sd/Counsel for the 1[st] Respondent” 6. Now both sides submit that this Court may appropriately dispose of the revision petitions taking note of the abovesaid settlement arrived at between the parties. 7. Learned Advocates appearing on both sides submit that the amount totally agreed to be paid as per the settlement is Rs.23 lakhs in both the cases. The cheque amount in S.T.No. 844/2011 is for Rs.16 lakhs and the cheque amount in S.T.No.845/2011 is for Rs.1,09,110/-. Accordingly, both sides submit that this Court may apportion the compensation amount payable in S.T.No.844/2011 as Rs.21,40,000/and that the compensation amount in S.T.No.845/2011 may be apportioned as Rs.1,60,000/-, thus totalling to Rs.23 lakhs. Accordingly, taking note of the mediated settlement, the following orders and directions are passed S.T.No. 844/2011 as follows: : - i. The impugned conviction imposed on the petitioners for the offence under Sec.138 of the Negotiable Instruments Act in this case will stand confirmed. - ii. The impugned substantive sentence imposed on A-2 will stand modified and reduced as imprisonment till the rising of the court. Crl.R.P.601/17 & cc. - : 5 :- - iii. The direction to pay fine amount will stand modified as direction to pay compensation of Rs. 21,40,000/- directly to the complainant. - iv. The petitioners are given time upto 15.9.2017 to pay Rs.5,90,000/- and the petitioners shall pay the balance amount of Rs.15,50,000/- to the complainant on or before 31.12.2017. - v. Out of the total compensation amount of Rs.21,40,000/- payable in S.T.No. 844/2011, the petitioners will pay Rs. 5,90,000/- directly to the complainant on or before 15.9.2017 and the balance amount of Rs.15,50,000/- shall be paid by the petitioners to the complainant on or before 31.12.2017. - vi. On default of the petitioners to pay the abovesaid amount mentioned herein above within the abovesaid stipulated time limit, A-2 will have to suffer simple imprisonment for a period of 6 months. - vii. Upon receiving such payments, the complainant will issue necessary receipts to the accused so that the accused can produce the same before the trial court to satisfy the said court about payment of the amount. - viii. The 2[nd] petitioner (A-2) will personally appear before the trial court at 11 a.m. on 6.1.2018 to suffer the simple imprisonment till rising of the court and to satisfy the said court about the payment of the total compensation amount of Rs. 21.4 lakhs in S.T.No. 844/2011. - ix. On default of the petitioners to pay the abovesaid amount, A-2 will have to suffer simple imprisonment for a period of 6 months. - x. Until 6.1.2018 all further coercive steps taken against the petitioners in pursuance of the execution of the impugned sentence in this case will stand deferred. - xi. On default of the petitioners either to appear before the trial court on 6.1.2018 or on default in paying the abovesaid amount as directed above, the trial court will be at liberty to proceed against the petitioners, in accordance with law. ## 8. The following orders and directions are passed in relation to ## S.T.No.845/2011: - i. The impugned conviction imposed on the petitioners for the offence punishable under Sec.138 of the Negotiable Instruments Act in this case will stand confirmed. - ii. The impugned substantive sentence imposed on A-2 will stand modified and reduced as simple imprisonment till the rising of the court. - iii. The direction to pay fine will stand modified and substituted with the direction that the petitioners will pay compensation of Rs.1,60,000/directly to the complainant. Crl.R.P.601/17 & cc. - : 6 :- - iv. The petitioners are given time upto 15.9.2017 to pay the compensation amount Rs.1,60,000/- directly to the complainant. Upon receiving such payments, the complainant will issue necessary receipts to the accused so that the accused can produce the same before the trial court to satisfy the said court about payment of the amount. - v. The 2[nd] petitioner (A-2) will personally appear before the trial court at 11 a.m. on 16.9.2017 to suffer the simple imprisonment till rising of the court and to satisfy the said court about the payment of the total compensation amount of Rs.1,60,000/- directly the complainant. - vi. On default of the petitioners to pay the amount mentioned herein above within the abovesaid stipulated time limit, A-2 will have to suffer simple imprisonment for a period of one month. - vii. Until 16.9.2017 all further coercive steps taken against the petitioners in pursuance of the execution of the impugned sentence in this case will stand deferred. - xi. On default of the petitioners either to appear before the trial court on 16.9.2017 or on default in paying the abovesaid amount as directed above, the trial court will be at liberty to proceed against the petitioners, in accordance with law. 9. The parties have also agreed that if the total compensation amount of Rs.23 lakhs in both these cases are paid by the petitioners to the complainant within the abovesaid stipulated time limit, then the complainant will take steps to withdraw complaints in S.T.C.No.656 and 657 of 2015 on the file of the abovesaid magistrate's court, in which accused therein is A-3 in the original complaints. Sri.K.A.Salil Narayanan, learned counsel appearing for R-1 (complainant) in these cases would submit on the basis of the instructions of his party that in case the petitioners pay the total amount of Rs. 23 lakhs within the abovesaid stipulated time limit, then the complainant will forthwith take steps to withdraw those complaints. The said undertaking is recorded. Further it Crl.R.P.601/17 & cc. - : 7 :- is ordered in the interest of justice that all further proceedings and coercive steps in relation to S.T.No. 656 and 657 of 2015 on the file of the Judicial First Class Magistrate's Court-I, Thamarassery, will stand deferred until 6.1.2018. With these observations and directions, the aforecaptioned Crl.R.Ps. stand finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge