Biju Kumar v. State of Kerala and ISSAC THOMAS

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2010-09-22
Court Decision / Holding: The Criminal Revision Petition is allowed; the judgments of the lower courts are set aside and the accused is acquitted. The offence under Section 138 NI Act is compounded in terms of the petition, with compliance to conditions (including deposit to KSLSA). The proceedings against the accused are terminated, and the petitioner is set at liberty.
Final Disposition: Acquittal of the accused; Crl.R.P allowed; judgments of lower courts set aside; compounding of the offence recorded; ends prosecution.

Parties to the Case

Appellants / Petitioners

BIJU KUMAR

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
ISSAC THOMAS

Legal Representation & Advocates

Counsels for Petitioners

• Sri Bechu Kurian Thomas

Counsels for Respondents

• SMT. Latha Susan Cherian
• Public Prosecutor SMT. Sumangala P.N.

Case Synopsis & Summary

This is a Criminal Revision Petition filed by the accused, Biju Kumar, challenging the judgments convicting him under Section 138 of the Negotiable Instruments Act by the Judicial First Class Magistrate, Adimaly (C.C. No. 237/2002) and affirmed by the Addl. District & Sessions Judge (Ad hoc-1), Thodupuzha (Criminal Appeal No. 345/2003). The High Court, presided by V.K. Mohanan, heard the matter on 22 September 2010. On that day, a separate order in Crl.M.A. No. 8664/2010 allowed the parties to compound the offence and recorded the composition. The compounding, guided by the Supreme Court’s Damodar S. Prabhu v. Sayed Babalal H. doctrine, involved the accused paying and the complainant accepting settlement, including depositing 1% of the cheque amount with the Kerala State Legal Services Authority as directed. The High Court relied on Section 320(8) Cr.P.C. to permit the compounding and set aside the lower judgments, acquitting the accused and directing discharge. Additional petitions (CRMA 2730/10) deal with condoning delay and related procedural steps, all reflecting settlement and disposal of the dispute. The outcome is an acquittal and release of Biju Kumar, ending the prosecution in this matter.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 320(8) of Cr.P.C.

Legal Doctrines & Maxims

Damodar S. Prabhu v. Sayed Babalal H. (JT 2010(4) SC 457)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petition contends that the conviction under Section 138 NI Act should be set aside in view of a settlement between the parties. The matter has been compounding with the complainant receiving the full cheque amount. The petitioner relies on the Damodar S. Prabhu doctrine to permit compounding and seeks acquittal in terms of Section 320(8) Cr.P.C. The record shows compliance with conditions including a 1% deposit to KSLSA as directed, and a purpose to avoid further prosecution in light of a private settlement.

Contentions of Respondents

The respondents acknowledge settlement and state that the offence has been effectively resolved. They consent to compounding and resulting acquittal, having received the settlement amount. They rely on the High Court’s discretionary power to permit compounding in the NI Act context and on the terms already agreed between parties.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Damodar S. Prabhu v. Sayed Babalal H.	JT 2010(4) SC 457	Positive	The High Court relied on this Supreme Court decision to permit compounding of an offence under Section 138 NI Act and to require the prescribed deposit, guiding the compounding process.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 Crl.Rev.Pet.No. 2730 of 2010() -----------------------------CRA.258/2005 of ADDL. SESSIONS COURT (ADHOC-1), THODUPUZHA CC.237/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- BIJU KUMAR, S/O. CHELLAPPAN PILLAI, AGED 38 YEARS, PELLATHUPUTHEN VEEDU, KUNNATHOOR KARA, KUNNATHOOR TALUK, KOLLAM DISTRICT. BY ADV. SRI.BECHU KURIAN THOMAS ## RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ISSAC THOMAS, AGED 49 YEARS, - S/O. THOMAS, KAKKUDIYIL HOUSE, ADIMALY KARA, MUNNAMKANDAM VILLAGE. IDUKKI DISTRICT. ADV. SMT.LATHA SUSAN CHERIAN FOR R2 PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J. ---------------------------------------Crl. R.P. No.2730 OF 2010 ----------------------------------------** Dated 22nd Day of September, 2010 ## **ORDER** The revision petitioner is the accused in a prosecution for the offence under section 138 of the N.I.Act and the trial court as well as the lower appellate court found that the accused is guilty and accordingly he is convicted and sentenced for the said offence. 2. Today by a separate order, in Crl.M.A.No. 8664/2010, this court allowed the parties to compound the offence and accordingly, the composition of the said offence is recorded. The revision petitioner has also complied with the condition of paying cost, as fixed by this Court, on the basis of the guideline issued by the Apex Court in the decision reported in **Damodar.S.Prabhu** v. **Sayed Babalal.H.** [JT 2010(4) SC 457]. In the light CRMA 2730/10 ## **-:2:-** of the composition of the offence between the contesting parties, I am of the view that this Crl. R.P can be allowed, acquitting the accused in terms of Section 320(8) of Cr.P.C. 3. In the result, this Crl.Revision petition is allowed setting aside the judgment dated 10.8.2005 in C.C.No.237 of 2002 of the Judicial First Class Magistrate Court, Adimaly and the judgment dated 21.6.2006 in Crl.A.No.345 of 2003 of the court of Addl.District & Sessions Judge(Adhoc-1), Thodupuzha and acquitting the revision petitioner of all the charges levelled against him in the above case and he is set at liberty. The Crl.R.P is allowed accordingly. **V.K.MOHANAN, JUDGE** kvm/- CRMA 2730/10 **-:3:-** **V.K.MOHANAN, J. ---------------------------------------Crl. M.A.No. 7088 of 2010 in Crl.R.P.No. 2242 of 2010** **----------------------------------------** Dated this the 26[th] day of July, 2010. ## **ORDER** This is a petition filed under Section 147 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') to compound the offence under Section 138 of the N.I.Act. The dispute is the subject matter of the Crl.R.P. In the petition, it is stated that during the pendency of the cases, the entire matter was settled and the petitioner/first respondent has received the entire amount covered by the cheque in dispute. The petitioner/first respondent does not intend to prosecute the petitioner/revision petitioner any further in the matter. 2. I have gone through the compounding petition and I am satisfied with the terms and conditions CRMA 2730/10 **-:4:-** incorporated therein and the petition is signed by both the revision petitioner and the first respondent/ complainant and countersigned by their respective counsel. As the revision petitioner is an and considering the particular facts and circumstances involved in the case, especially, in the light of the discretion granted to this Court by the Apex Court in the decision reported in **Damodar.S.Prabhu** v. **Sayed Babalal.H.** [JT 2010(4) SC 457], the revision petitioner was permitted to file the compounding petition depositing 1% of the cheque amount, as per order dated 19.7.2010 so as to enable him to move this Court to compound the offence for which he is convicted and sentenced. The revision petitioner has paid a sum of Rs.4000/- being 1% of the cheque amount to the Kerala State Legal Services Authority, vide Receipt No.074 dated 23.7.2010 in terms of the decision of the CRMA 2730/10 ## **-:5:-** Supreme Court. As I am satisfied with the terms and the averments contained in the compounding petition, which is signed by the revision petitioner as well as the first respondent and countersigned by their respective counsel, permission is granted to compound the above offence and the composition is recorded. **V.K.MOHANAN, JUDGE** kvm/- CRMA 2730/10 **-:6:-** ## **V.K.MOHANAN, J.** ## **--------------------------------------------Crl.M.A.No.7087 of 2010 in Unnumbered Crl.R.P.No. of 2010** **--------------------------------------------Dated this the 26[th] day of July, 2010** ## **O R D E R** This is an application to condone the delay of 1735 days occurred in filing the Crl.R.P. 2. Learned counsel for the revision petitioner submitted that the petitioner is an Ex-Serviceman and after the impugned judgment, the matter has been settled out of court and a compounding petition has also been filed along with the revision petition and there is no contention on merit. 3. Having regard to the above facts and circumstances, especially when the contesting parties settled the matter, I am of the view that the petitioner can be given an opportunity to settle the matter and to redress his grievance. CRMA 2730/10 ## **-:7:-** In the result, the delay of 1735 days in filing the Criminal Revision Petition is condoned and the Registry is directed to number the Crl.R.P. **V.K.Mohanan, Judge.** MBS/ CRMA 2730/10 **-:8:-** **V.K.MOHANAN,** **J.** -------------------------------------------- Crl.A.NO. OF 200 ----------------------------------J U D G M E N T ## CRMA 2730/10 ## **-:9:-** DATED: -2- 2010 CRMA 2730/10 ## **-:10:-** **V.K.MOHANAN, J** . O.P.No. **JUDGMENT** Dated:.. **V.K.MOHANAN, J** . CRMA 2730/10 ## **-:11:-** O.P.No. ## **JUDGMENT** Dated:.. This Crl.Revision Petition is preferred by the sole accused in C.C.No..... on the file of the Judicial First Class Magistrate Court-II, ... and the appellant in Crl.Appeal No..... of the Addl.Sessions Judge, ......... The revision petitioner challenges his conviction and sentence for the offence under Section 138 of the Negotiable Instruments Act. 2. The cheque in question involved is for an amount of Rs.......This Court passed an order today allowing the compounding petition filed by the revision petitioner as well as the 2[nd] respondent, countersigned by their respective counsels. In the light of the fact that the offence has been compounded by the parties to the dispute, I am of the view that this Crl.Revision Petition can be allowed setting aside the judgments of the courts below. In the result, this Crl.R.P is allowed setting aside the CRMA 2730/10 ## **-:12:-** judgment dated ...... in ..... of the JFCM-II, ...... and the judgment dated in Crl.A.No...... of the Addl. Sessions Judge, ...... Court-II, Alappuzha and acquitting the accused. The Crl.R.P is allowed as above. **V.K.MOHANAN, JUDGE** kvm/- CRMA 2730/10 ## **-:13:-** **V.K.MOHANAN, J** . O.P.No. **JUDGMENT** Dated:..