CRL.Rev.Pet.No. 3421 of 2003(D)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND APRIL 2008 / 2ND VAISAKHA 1930 Crl.Rev.Pet.No. 3421 of 2003(D) ------------------------------CRA.55/2002 of ADDL.SESSIONS COURT,NORTH PARAVUR CC.1797/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONER: ------------------ SRI.K.M.FEROZEKHAN. S/O.MOHAMMED,KUNNUMPURATH VEEDU, THAIKKATTUKARA,ALUVA-6. BY ADV. SRI.V.K.VEERAVUNNY SRI.K.Y.TOMY RESPONDENTS: RESPONDENTS ------------------------ 1. M/S.VAVAGAS REPRESENTED BY ITS PROPRIETOR,RAVIKRISHNAN K., MANGARA HOUSE,PERICKAPALAM,U.C.COLLEGE P.O., ALUVA. 2. KERALA STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.P.K.RAVISANKAR R2 BY P.P. SRI C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-4-2008, THE COURT ON 22-4-2008, PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ---------------------------------------------- CRL.R.P.N0.3421 OF 2003 ---------------------------------------------Dated, 22[nd] April, 2008. **ORDER** This Crl.R.P. is directed against the judgment dated 26-9-2003 in Crl.A.No.55/2002 on the file of the Addl.Sessions Court, North Parur and against the judgment dated 19-12-2001 in C.C.No.1797/98 on the file of the Judicial First Class Magistrate-II, Aluva. 2. The above Calendar Case was instituted upon a private complaint preferred by the Ist respondent herein against the revision petitioner/accused for the offence punishable under section 138 of the Negotiable Instruments Act. The complaint was filed alleging that the revision petitioner had agreed to supply cooking gas to the Ist respondent and accepted an amount of Rs.33,000/- and since he could not supply the same, he had issued a cheque for Rs.33,000/- which when presented for encashment was dishonoured on the ground of insufficiency of funds. Accordingly, statutory steps were taken and since no payment, the complaint was filed upon which the trial court CRMC 3421/2003 ## **-:2:-** took cognizance and during trial, PWs 1 and 2 were examined from the side of the complainant and marked Exts.P1 to P9 as documentary evidence. No evidence was adduced from the side of the accused/defence. Finally, the trial court by its judgment dated 19-122001 in C.C.No.1797/1998 found that the revision petitioner/accused is guilty for the offence punishable under section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for two months and further ordered to pay a compensation of Rs.33,000/- to the complainant. Aggrieved by the trial court judgment, the revision petitioner herein preferred Crl.A.No.55/2002 before the Sessions Court, Ernakulam which was transmitted to the Additional Sessions Court, North Parur wherein the appeal was dismissed by the judgment dated 26-9-2003, confirming the conviction and sentence awarded by the trial court. 3. It is the above judgment of the courts below and its finding and sentences are challenged in this Crl.R.P. When the matter came up for consideration, this Court has issued notice and suspended the CRMC 3421/2003 ## **-:3:-** sentence also on condition of the revision petitioner executing a bond for Rs.25,000/- with two solvent sureties each for the like amount to the satisfaction of the Judicial First Class Magisttrate II, Aluva and also on depositing an amount of Rs.10,000/- within four weeks from that date. But subsequently, the Crl.Revision Petition was dismissed by this Court on 19-3-2007 for non prosecution as there was no representation. Thus there was no decision on merit in the above Crl.Revision Petition. 4. Subsequently, the revision petitioner herein preferred a petition to restore the above Crl.R.P. by filing Crl.M.A.3831/2008 and since there was delay in preferring the petition for restoration of the Crl.R.P., another petition, Crl.M.A.3832/2008 was filed for condoning the delay. Apart from the above petitions, another petition i.e. Crl.M.A.3833/2008, which is a compounding petition, filed by the revision petitioner as well as the Ist respondent which containing the signatures of both parties and also the signatures of the concerned counsel appearing for the parties. The counsel for the parties prayed that this Court may permit the parties to compound the offence. CRMC 3421/2003 ## **-:4:-** **5** . As I pointed out earlier, the Crl.R.P. was dismissed for default for non prosecution and as such, there is no decision on merit. The Apex Court has held time and again that the appeal or revision matters shall not be dismissed or disposed of for non prosecution and even if there is no representation, the matter shall be disposed of only on merit. The Hon.Supreme Court in its decision reported in **Madan** . **Lal Kapoor v. Rajiv Thapar and Ors** {(2007) 3 Supreme Court Cases (Cr.) 437} held that a criminal matter cannot be dismissed for default and it must be decided on merits. In the very same decision, the Apex Court has held in paragraph 5: “Thus in Bani Singh v. State of U.P., a threeJudge Bench of this court held that a criminal appeal should not be dismissed in default but should be decided on merits. If despite notice neither the appellant nor his counsel is present, the court should decide the appeal on merits. If the appellants is in jail the court can appoint a lawyer at State expense to assist it. This would equally apply to the respondent”. CRMC 3421/2003 ## **-:5:-** In this juncture, it is relevant to note that the Supreme Court in its decision in **Ram Naresh Yadav v. State of Bihar** held that “a criminal appeal can be dismissed for default”. That decision is . overruled in the above quoted decision viz., Bani Singh v. State of U.P ((1996) 4 SCC 720). In **Parasuram Patel v.State of Orissa** (1994 SCC (Cr.) 1320), the Supreme Court held that a criminal appeal cannot be dismissed for default. Therefore the reiterated stand of the Supreme Court against the dismissal of Crl.Appeal for non **' s case** prosecution, the Supreme Court held in **Madan Lal Kapoor (cited supra)** that the same principle will apply to Crl.Revision Petitions also. On application of the above principles laid down by the Supreme Court in the present case it can be seen that the earlier dismissal of the Crl.Revision Petition was not correct as the same was not on merit, but for non prosecution. Hence, it is only just and proper to restore the above Crl.R.P. for disposal on merit. In the present case, apart from the above legal defect, it is also pointed out that the matter has been settled out of court and there is no need to put the petitioner CRMC 3421/2003 ## **-:6:-** behind the bar towards the execution of the sentence passed by the impugned judgments. Since there is no decision on merit in the Crl.R.P., I have already set aside the order of dismissal of the revision petition for non prosecution and the Crl.R.P. has already been restored vide separate orders dated 18-4-2008 in Crl.M.A.No.3831/2008 and 3832/2008. 6. As a matter of fact, when the revision petitioner approached this Court by filing the above Crl.M.As, no matter was pending before any court of law either in the form of original proceedings or by way of appeal or revision. Naturally, the question will arise as to how these petitions can be entertained when no proceedings is pending in any court. A learned Judge of this Court in **Yesudas v. S.I. of Police** (2008(1) KLT 245) has held that the prayer to quash the proceedings on the ground of composition in that case cannot be accepted when no proceedings pending in any court and it has been further held that it would definitely be a very wrong message if such prayers for composition were to be entertained and allowed by this court, except CRMC 3421/2003 ## **-:7:-** where extraordinary reasons are shown to coexist. In the decision in **Sudheer Kumar v.Kunhiraman** (2008(1) KLT 168), a Division Bench of this Court held that Section 320 of Cr.P.C. only deals with compounding of offences pending either before the Trial court or before Appellate or revisional court. It is also held in the very same decision that the High Court cannot reverse, alter or modify conviction which became final by its own order passed in a revision petition by using power under section 482 which may amount to cancellation of conviction and sentence, taking note of subsequent events like compounding of case. It is true, the compounding of offence under section 320 Cr.P.C. or under section 147 of the N.I.Act can be made only if any proceedings is pending in any court either by way of original proceedings or any appellate proceedings or at least in a proceedings in revision. Further, if those proceedings are over, and if there is a finality on merit, there is no question of either compromise or compounding after the termination of such proceedings on merit. Any attempt to reopen the issue which already settled on merit would CRMC 3421/2003 ## **-:8:-** amount to review of the finding which is specifically barred as per the mandate contained in section 362 of Cr.P.C. Section 362 says: ## “362. **Court not to alter judgment.** Save as otherwise provided by this Code or by any other law for the time being in force, no court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error”. From the unequivocal language used in Section 362 of Cr.P.C, it is crystal clear that it is a prohibition or ban imposed on court, means any court which includes trial court, appellate or revisional court, even the High Court cannot alter the signed judgments. If that be so, this Court by invoking Section 482 of Cr.P.C. cannot indirectly alter a judgment bypassing the prohibition contained in Section 362 of Cr.P.C. Under the above legal position, the above judgments of this Court are absolutely correct. But in the present case, the position is entirely different. There is no decision on merit regarding he contentions raised by the revision petitioner in the above Crl.R.P. Actually, the Crl. R.P. was disposed of without touching the merit and only for the reason that CRMC 3421/2003 ## **-:9:-** the revision petitioner was not prosecuted. Therefore, it cannot be said that the order passed by this Court on 19-3-2007 in the above Crl.R.P. is a final order on merit and therefore there is no bar in entertaining the above criminal revision petition and the compounding petition and disposing the same on merit. 7. Under the above legal premises, I am proceeding to dispose of the above matter. Suffice to say, no contention is advanced in the revision petition based upon any legal or factual issues involved in the case as such. On the other hand, both the counsel for the revision petitioner as well as the Ist respondent submitted that the matter has been settled out of court and a compounding petition under section 147 of the N.I.Act has already been filed which numbered as Crl.M.A.3833/2008. By Separate order dated 22-8-2008 in Crl.M.A. No.3833/2008, permission was granted to compound the offence, as the composition was arrived after conviction and after filing the revision petition and accordingly the compounding petition is allowed.. In the light of the composition of offence by the parties for CRMC 3421/2003 ## **-:10:-** which this court has granted permission , this Revision Petition can be disposed of incorporating the terms contained in the compounding petition. 8. Accordingly the Crl.R.P. is disposed of setting aside the conviction and sentence passed by the trial court as per its judgment dated 19-12-2003 in C.C.No.1797/1998 and as confirmed by the judgment of the Addl.Sessions Court, North Parur in Crl.A.No.55/2002 and the revision petitioner/accused is acquitted of the charge under section 138 of the N.I.Act and cancelled the bail bond if any executed by him and setting aside all further proceedings if already initiated against him consequent to the impugned judgments. There will be a further direction to the trial court to withdraw the warrant if any already issued against the petitioner. 9. As per the terms of the compounding petition, the revision petitioner is entitled to get released a sum of Rs.8250/- which was already deposited as per the order dated 17-1-2001 in 130/2002 of the Sessions Court Ernakulam and a sum of Rs.10,000/- which he has CRMC 3421/2003 ## **-:11:-** deposited as per the order dated 26-12-2003 of this Court in Crl.M.A No.13866/2003. At this juncture, this Court shall not lose sight of the fact that much judicial time has been spent by the trial court, appellate court and this court while entertaining the revision petition and had to incur proportionate expense by the State because of the non settlement of the dispute. Therefore it is just and proper to recover a sum of Rs.5000/- towards the cost from the revision petitioner and to pay to the State Exchequer. Hence there will be a direction to the court below that only an amount of Rs.13,250/- (Rs.Thirteen thousand two hundred and fifty only)need be returned to the revision petitioner and Rs.5000/out of Rs.18250/- shall be recovered and paid to the State Exchequer. The courts below are directed to release an amount of Rs.13250/- in favour of the revision petitioner. The Crl.R.P. is disposed of accordingly. **V.K.MOHANAN, JUDGE.** ## **kvm/-** CRMC 3421/2003 **-:12:-** kvm/- .MOHANAN, J. No.... Judgment/Order CRMC 3421/2003 ## **-:13:-** Dated: