Mangavil Rajagopalan & Mangavil Leela Nivas v. Sabitha and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941** ## **CRL.A.No.270 OF 2016** **AGAINST THE ORDER/JUDGMENT IN CC 128/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II(FOREST OFFENCES),MANJERI** **AGAINST THE ORDER/JUDGMENT IN CRA 178/2012 DATED 30-01-2016 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, MANJERI** **CRIME NO.47/2008 OF Kondotty Police Station , Malappuram** ## **APPELLANT/S:** **MANGAVIL RAJAGOPALAN S/O.SANKARANARAYANAN, MANGAVIL LEELA NIVAS, THENHIPALAM AMSOM, PANAMBRA, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.M.RAFIQ** ## **RESPONDENT/S:** **1 SABITHA E. D/O.P.SREEDHARAN NAIR, ELLATH, CHERUKAVU VILLAGE, MALAPPURAM DISTRICT. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.K.RAKESH SRI.SAIGY JACOY PALATTY, P.P.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.Appeal No. 270 of 2016 ================== Dated this the 19[th] day of December, 2019 ## **J U D G M E N T** The appellant is the sole accused in Crime No.47/2008 of Kondotty Police Station, which has been registered for offences punishable under Sec.498A and 406 I.P.C., on the basis of the complaint of the 1[st] respondent defacto complainant, who was the wife of the appellant. The prosecution case in short is that the appellant accused married the 1[st] respondent defacto complainant on 8.5.1996 and misappropriated her gold ornaments and physically and mentally harassed demanding more gold and money, etc. Thereby, the appellant accused has committed the abovesaid offence. The Police, after investigation had filed final report/charge sheet in the above crime, which has led to the institution of Calendar Case, C.C.No. 128/2009 on the file of the Judicial First Class Magistrate's Court-II (Forest offences) Manjeri. The trial court after trial acquitted the accused, against which the 1[st] respondent defacto complainant filed appeal as Criminal Appeal, as Crl. A. No.178/2012, against the acquittal of the appellant herein under Sec.372 Cr.P.C. before the Court of Addl. Sessions Judge-II, Manjeri. The Sessions Court Crl.Appeal 270/16 - : 3 :- confirmed the acquittal under Sec.406 I.P.C., but convicted the accused/ appellant herein under Sec.498A of the I.P.C. to undergo rigourous imprisonment for one year and to pay fine of Rs. 25,000/-, in default of which, to undergo RI for 3 months. It is in the above circumstances that the appellant herein has filed the above criminal appeal with the following prayers: _“....... to set aside the judgment conviction and sentence in Crl. Appeal No.178/2012 of the Court of Addl. Sessions Judge-II, Manjeri dated 3001.2016 reversing the judgment of acquittal in C.C.No. 128 / 2009 of the Court of Judicial Magistrate of First Class-II (Forest Offences), Manjeri dated 07.05.2012 allow the criminal appeal and acquit the appellant so as to secure the ends of justice.”_ 2. Heard Sri.P.M.Rafiq the learned counsel appearing for the appellant accused, Sri.K.Rakesh, learned counsel appearing for R- 1 defacto complainant and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the 2[nd] respondent State of Kerala. 3. Now the appellant has filed Crl.M.A.No. 1/2019 in the above appeal for production of additional documents as per Anxs.A, B and C thereto. Anx A thereto, is copy of the judgment dated 10.4.2019 rendered by the Family Court, Malappuram, in O.P(H.M.A.).No. 197/2019 in the matter of grant of divorce by mutual consent of the parties, in consequence of the mediation process. Anx.B thereto is the copy of the judgment 22.5.2019 rendered by the Crl.Appeal 270/16 - : 4 :- Division Bench of this Court in Matrimonial Appeal, MA No.268/2016 arising out of O.P.No. 331/2014 on the file of the Family Court, Malappuram. Anx. C is the affidavit sworn to by the 1[st] respondent defacto complainant informing the factum of settlement between the parties. Anx.B/6 is copy of the memorandum of mediation settlement agreement dated 12.4.2019 arrived at between the parties through the mediation centre attached to this Court. As per Para No.2 of Anx. B(6) of the mediation settlement agreement, the respondent Sabitha, (defacto complainant) has agreed to give full co-operation to the compromise/ settlement for the termination of the criminal appeal No.270/2016 on the file of this Court regarding the conviction and sentence imposed on the appellant for the offence as per Sec.498A of the I.P.C. including the filing of affidavit before this Court for swearing to the factum of the settlement for quashment of the impugned criminal proceedings, etc. 4. In Anx. C affidavit dated 12.4.2019 the 1[st] respondent defacto complainant has stated about the factum of settlement and about the receipt of compensation by her in full and final settlement of all her claims and that she does not wish to prosecute the matter in relation to the impugned criminal proceedings in the above criminal Crl.Appeal 270/16 - : 5 :- appeal any further and that this Court may quash the impugned criminal proceedings, which led to the said criminal appeal on the ground of settlement between the parties. Crl.M.A.No. 2/2019 has thereafter been filed along with an affidavit of the petitioner seeking quashment of the impugned criminal proceedings on the ground of settlement between the parties and consequential setting aside of the judgment of conviction and sentence imposed on the appellant as per the impugned judgments. 5. The learned counsel for the 1[st] respondent defacto complainant has submitted on the basis of the instructions of his party that the 1[st] respondent has no objection whatsoever for quashment of the impugned criminal proceedings and consequential setting aside of the judgment of conviction and sentence imposed on the appellant as well as the resultant acquittal of the appellant accused in the said impugned criminal proceedings. The prosecution also does not have any serious objection for the abovesaid course of action as the only offence alleged in this case is one as per as Sec. 498A of the I.P.C. and as the rival spouses have now resolved their disputes and that too, through the mediation centre attached to this Court. Further it is seen that the Division Bench of this Court in Anx. Crl.Appeal 270/16 - : 6 :- B judgment dated 22.5.2019 in Mat Appeal No.268/2016 has also acted on the basis of the abovesaid mediated settlement agreement and has disposed of the said matrimonial appeal recording the terms and conditions of the said settlement and has also directed the parties to strictly abide by the terms and conditions arrived at between the parties in the mediation settlement agreement. 6. In the decisions in _**Biju Eappen v. State of Kerala**_ [2010 (1) KLT 289], _**Thankamma v. State of Kerala**_ [2006 (3) KLT 846], _**Bijukumar v State of Kerala & Anr.**_ [2013(3) KLJ 38], etc. this Court has held that conviction involving matrimonial offences as per Sec. 498A of the I.P.C., etc. could be set aside by quashing the impugned criminal proceedings on the ground of subsequent settlement between the parties and consequently the conviction could be set aside even in appellate or revisional stage. The Apex Court in the judgments as in _**Bitan Sengupta & Anr. v. State of West Bengal & Anr**_ . [JT 2018(7) SC 102] has held that in such cases, the impugned criminal proceedings could be quashed and consequently, the judgment of conviction and sentence could be interfered with so as to result in acquittal of the appellant accused and that in the case therein, the High Court ought not to have refused Crl.Appeal 270/16 - : 7 :- to grant the said relief, where the matrimonial parties have decided to put an end to the disputes. 7. Taking note of the abovesaid settlement between the parties and taking note of the abovesaid submissions of the parties, it is ordered that the impugned criminal proceedings in Calendar Case C.C.No. 128/2009 on the file of the Judicial First Class Magistrate's Court-II (Foreest Offences), Maneri, arsing out of the impugned final report/charge sheet filed in Crime No.47/2008 of Kondotty Police Station and all further proceedings emanating therefrom, will stand quashed as against the accused person therein. Resultantly it is also ordered that the impugned judgment dated 7.3.2012 of the Judicial First Class Magistrate's Court (Forest offences), Manjeri, in C.C.No. 128/2009 as reversed by the impugned appellate judgment dated 30.1.2016 in Crl.Appeal No. 178/2012 on the file of the Addl. Sessions Court-II, Manjeri, in respect of the impugned conviction and sentence imposed on the accused will stand set aside. Consequently, it is ordered that the appellant accused is acquitted of the alleged offence Sec. 498 A of the I.P.C. and the appellant accused will stand set at liberty. The bail bonds executed by the appellant accused in the above case will also stand cancelled. Crl.Appeal 270/16 - : 8 :- 8. It is stated by the learned counsel for the appellant that, as per the averments in para 9 of Anx.C affidavit of the 1[st] respondent defacto complainant, she has agreed that she has no objection in releasing the fine amount deposited by the appellant before the trial court as condition for suspension of the sentence in this appeal, to the appellant. Accordingly, it is also ordered that the trial court shall release the said amount to the appellant herein within one month from the date of production of a certified copy of this judgment. The Registry will forward copies of this order to the Judicial First Class Magistrate's Court-II (Forest offences), Manjeri, who has dealt with C.C.No. 128/2009, as well as to the Addl. Sessions Court, Manjeri, who has dealt with Crl.Appeal No.178/2012, for necessary information, at the cost of the appellant. The appellant will also forward copy of this order to the investigating officer concerned. The office of the Advocate General will forward copy of this order to the investigating officer for necessary information. With these observations and directions, the above Criminal Appeal stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE**