CRL.R.P. No. 2114 of 2014 (Praseela v. State of Kerala and Shibu)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **TUESDAY, THE 9TH DAY OF DECEMBER 2014/18TH AGRAHAYANA, 1936** ## **Crl.Rev.Pet.No. 2114 of 2014 ()** ## **--------------------------------** **AGAINST THE JUDGMENT IN CRA 550/2012 of I ADDITIONAL SESSIONS COURT, THRISSUR DATED 17-09-2014** **AGAINST THE JUDGMENT IN CC 390/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THRISSUR DATED 18-11-2011. REVISION PETITIONER/APPELLANT/ACCUSED:** **------------------------------------------------------------------** **PRASEELA AGED 35 YEARS W/O.DHARMARAJAN, A.G.'S OFFICE QUARTERS, PULLAZHY P.O. THRISSUR.** ## **BY ADV. SRI.K.NIRMALAN** ## **RESPONDENT(S)/RESPONDENT/STATE AND THE COMPLAINANT:** **--------------------------------------------------------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA.** ## **2. SHIBU** **S/O.CHANDRAN, PARAMBATH HOUSE, CONVENT ROAD CHIYYARAM VILLAGE, THRISSUR.** **BY PUBLIC PROSECUTOR SRI.N.SURESH.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** iap ## **K.RAMAKRISHNAN, J ---------------------------------CRL.R.P.NO.2114 OF 2014 ----------------------------------** Dated this the 9[th] Day of December, 2014 ## **ORDER** The accused in C.C.390/2010 on the file of the Judicial First Class Magistrate Court-II, Thrissur is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the 2[nd] respondent alleging committing offences under Section 138 of the Negotiable Instruments Act. The case of the complainant in the complaint was that, the revision petitioner borrowed a sum of Rs.1,50,000/- and in discharge of that liability, she had issued the disputed cheque, which when presented was dishonoured for the reason, funds insufficient. The complainant issued notice demanding payment and intimating dishonour but, the accused had not paid the amount. So she had committed the offence punishable under Section 138 of the Negotiable Instruments Act. When the revision petitioner appeared before the court below originally the particulars were read over and explained to her and she was pleaded not guilty. Thereafter due to the intervention of wellwishers of both the parties, the matter has been settled between the parties and she filed a petition for permitting her to plead guilty and both the complainant and the revision petitioner filed a joint petition for agreeing to pay the amount of Rs.1,50,000/- CR.(R.P)NO.2114/2014 2 within 6 months and the learned Magistrate accepted that joint petition and also the plea was again read over and she pleaded guilty, on that basis, convicted the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act, and sentenced her to undergo imprisonment till rising of the court and also to pay the cheque amount of Rs.1,50,000/- as compensation under Section 357(3) of Criminal Procedure Code, in default to under go simple imprisonment of 3 months and 6 months time was granted for payment of the compensation amount and the revision petitioner suffered the sentence of imprisonment till rising of the court. Aggrieved by the same, she filed Criminal Appeal.No.550/2012 before the Sessions Court, Thrissur, which was made over to Additional Sessions Court, Thrissur. The learned Additional Sessions Judge allowed the appeal in part, confirming the order of conviction and direction to pay compensation of Rs.1,50,000/- but, reduced the substantive sentence to 2 months from 3 months, and 2 months further time was granted for payment of the compensation. Aggrieved by the same, the present revision petition has been filed. 3. Considering the scope of enquiry this court felt that the petition can be disposed of at the admission stage itself, after hearing the Counsel for the revision petitioner and the Puplic Prosecuter appearing for the 1[st] respondent dispensing notice to the 2[nd] respondent. 4. The Counsel for the revision petitioner submitted that, the CR.(R.P)NO.2114/2014 3 order passed by the court below of recording plea of guilt on the subsequent stage when already the revision petitioner has pleaded guilty, is not sustainable in law. Further lower court ought to have recorded the compounding and should have acquitted her, and further submitted that if the court feels that the revision is not to be admitted prayed for 6 months time for payment of the amount. 5. The learned Public Prosecutor supported the concurrent findings of the court. 6. It is an admitted fact that the 2[nd] respondent filed a private complaint under Section 138 of the Negotiable Instruments Act, alleging that the revision petitioner borrowed a sum of Rs.1,50,000/and in discharge of the liability, she had issued the disputed cheque. It is also an admitted fact that when she received summons from the court, she appeared and at that time when the particulars of offences were read over she pleaded not guilty. It is also an admitted fact that subsequently the matter has been settled between the parties where she had agreed to pay the amount of Rs.1,50,000/- within a period of 6 months and they filed a joint petition before the court below showing the terms of the settlement, and she had also filed an application requesting the court to record the particulars of offence again as she did not understand the particulars of offences read over earlier and that was allowed, and the particulars of offence were again read over and she pleaded guilty and on the basis of the plea of guilty as voluntary and on the CR.(R.P)NO.2114/2014 4 basis of the joint petition made by the parties, the court below had accepted the plea of guilt and convicted her for the offence under Section 138 of the Negotiable Instruments Act, and sentenced her to undergo simple imprisonment till rising of the court and also to pay the cheque amount of Rs.1,50,000/- as compensation, with default the sentence of 3 months simple imprisonment but, granted time of 6 months for payment as compensation amount as provided in the joint statement. This Court has held in one of the decisions, that, if the party wants to plead guilty on a subsequent occasion and for that purpose files an application for permitting him to plead guilty then there is no bar under the Code of Criminal Procedure for the court to allow that application to exercise the right of the accused to plead guilty and suffer the sentence. Further, Chapter XXI(A) has been incorporated under the Code of Criminal Procedure by Amendment Act 2 of 2006 which came into effect from 5/07/2006 for giving an opportunity for the parties to make plea bargaining as part of the criminal adjudicatory system where an opportunity has been given to the accused to bargain for the sentence to be imposed and with consent of the accused and the victim a composition can be arrived at between parties and that can be recorded by the court. But in this case instead of following the procedure as provided under Section 365(A), the Court below had treated the application filed by the petitioner for reading over the particulars of offence again as an application for plea bargaining, CR.(R.P)NO.2114/2014 5 and allowed the revision petitioner to plead guilt and on the basis of the composition entered into between the parties, the sentence was fixed and the case was disposed of.. So, under the circumstances it cannot be said that the court below had committed any illegality as such, though there is some procedural irregularities in applying the provisions which will not vitiate the trial as such, especially when a joint petition has been filed by the parties regarding the manner in which the composition will have to be recorded. 7. Further the submission made by the counsel for the revision petitioner that, the court below ought to have acquitted recording the composition, will not be possible in this case , because the amount has not been paid, and a criminal court has no power to pass a civil decree for the amount covered by the cheque, granting time for payment alone on the basis of the joint petition filed by them. So, under such circumstances the court below can only convict the accused on the basis of plea bargaining made by her by filing separate application for allowing her to plea guilty, coupled with the composition agreement produced before the court. So the court below is perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act, and also the sentence imposed also cannot be said to be excessive as it is as agreed between the parties that the sentence also has been passed. 8. So, under the circumstances there is no merit in the CR.(R.P)NO.2114/2014 6 revision petition and the same is liable to be dismissed and the orders of the courts below have to be confirmed and the revision petition has to be dismissed. But the counsel for the revision petitioner submitted that she wants some more time for payment and requested to grant 6 months more time. Though this court was reluctant to grant that much time considering the conduct of the party but, considering the fact that the matter has been settled between the parties and also considering the amount involved, this Court feels that the request can be granted. So, time till 31-05-2015 is granted for the revision petitioner, to pay the amount. So, revision petitioner is granted time till 31/05/2015. The amount if any, already paid is directed to be adjusted towards this amount on satisfaction of the payment by the revision petitioner before the court below. If the revision petitioner pays the amount directly to the 2[nd] respondent and produces the proof of payment of the same, before the Court below and the complainant appears before the Court below and acknowledges the payment of the amount within the above time, then the Court below is directed to treat the same as substantive compliance of payment of compensation and record the same in the respective registers and close the case as provided in _**Beena v. Balakrishnan Nair and Another [2010(2) KLT 1017] and Sivankutty v. John Thomas and Another [2012(4) KLT 21]**_ CR.(R.P)NO.2114/2014 7 In the above directions and observations, the above petition is dismissed. Sd/- **K.RAMAKRISHNAN, JUDGE** iap