Sivakumar Kartha v. A.E. Syed Kunju and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2011-06-30
Court Decision / Holding: Crl.R.P. allowed; acquitting the revision petitioner of all charges; setting aside the judgments dated 28.08.2002 (C.C. 1294/1998) and 30.07.2003 (Crl.A. 667/2002); compounding of the offence recorded under Section 138 NI Act as per Damodar S. Prabhu guidelines; petitioner released.
Final Disposition: Acquittal of the petitioner; case disposed

Parties to the Case

Appellants / Petitioners

Sivakumar Kartha

Respondents

A.E. Syed Kunju
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• SRI. IEANS.C.CHAMAKKALA

Counsels for Respondents

• SRI. ABHILASH BHASKAR (for R1)
• SRI. BINU JOHN (for R1)
• Public Prosecutor SMT. Rekha C. Nayyar (for R2)

Case Synopsis & Summary

This is a Criminal Revision Petition under sections 397 and 401 Cr.P.C. by Sivakumar Kartha challenging a conviction for an offence under section 138 of the Negotiable Instruments Act, 1881. The trial court and the Judicial First Class Magistrate, Muvattupuzha, had convicted the petitioner, and the conviction was sustained by the appellate court. On 30 June 2011, the Kerala High Court, after recording settlement between the parties, allowed the revision petition and proceeded to the question of compounding the offence under the Negotiable Instruments Act. In a separate order (Crl.M.A.No.5668/2011), the court recorded a compounding of the offence in light of the amicable settlement and the terms fixed by the court, including the payment of costs as directed. The court invoked the guideline from the Supreme Court in Damodar S. Prabhu v. Sayed Babalal H. and held that the revision petition could be allowed under Section 320(8) Cr.P.C., resulting in acquittal of the petitioner of all charges and setting him at liberty. The complainant had no intent to prosecute further, and the circumstances showed a fair settlement. The order thus terminates the criminal proceedings against the petitioner and sets aside the earlier judgments.”

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 147 of the Negotiable Instruments Act, 1881Section 320(8) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner seeks compounding of the offence under section 138 NI Act and acquittal under section 320(8) Cr.P.C., on the basis of amicable settlement between the parties and payment of costs fixed by the Court, contending that the matter has been settled and no further prosecution is warranted.

Contentions of Respondents

Respondent No.1 does not intend to prosecute further; the matter has been amicably settled; Respondent No.2 (Public Prosecutor) supports disposal in light of compounding; the parties have complied with the terms and the settlement is fair.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Damodar S. Prabhu v. Sayed Babalal H.	JT 2010(4) SC 457	Positive	Cited as the Supreme Court guideline for compounding offences under the NI Act and for payment of costs, guiding the High Court to permit compounding under 320(8) Cr.P.C.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 Crl.Rev.Pet.No. 1598 of 2011 ------------------------------------CRA.667/2002 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM CC.1294/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER(S): APPELLANT ------------------------------ SIVAKUMAR KARTHA, AGED 33 YEARS, S/O.CHANDRASEKHARAN NAIR, SREEHARI HOUSE, PAREKKADU LANE, POONKUNNAM, THRISSUR DISTRICT. BY ADV. SRI.IEANS.C.CHAMAKKALA RESPONDENTS(S): RESPONDENTS -------------------------- 1. A.E.SYED KUNJU, ADYAKALAYIL VEEDU, KAVUMKARA KARA, MARKET POST, THRISSUR DISTRICT - 680001. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. BY ADV. SRI.ABHILASH BHASKAR FOR R1 BY ADV.SRI.BINU JOHN FOR R1 BY PUBLIC PRSOSECUTOR SMT.REKHA.C.NAYAR FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.R.P.No. 1598 of 2011** **----------------------------------------** Dated this the 30th day of June, 2011 ## **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. 5668/2011, 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 of the composition of the offence between the contesting ## **Crl.R.P.No. 1598 of 2011** ## **-:2:-** 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 28.8.2002 in C.C.No.1294 of 1998 of the Judicial First Class Magistrate Court-I, Muvattupuzha and the judgment dated 30.7.2003 in Crl.A.No.667 of 2002 of the court of Additional Sessions Judge, Adhoc-I, Ernakulam 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** MBS/ ## **Crl.R.P.No. 1598 of 2011** ## **-:3:-** ## **V.K.MOHANAN, J.** **---------------------------------------Crl. M.A.No. 5668 of 2011 in Crl.R.P.No. 1598 of 2011 ----------------------------------------** Dated this the 30th day of June, 2011. ## **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 amicably settled and the revision petitioner has received the entire amount covered by the cheque in dispute. The first respondent/complainant does not intend to prosecute the matter any further. 2. I have gone through the compounding petition and I am satisfied with the terms and conditions incorporated therein and the petition is signed by both the revision ## **Crl.R.P.No. 1598 of 2011** ## **-:4:-** petitioner and the first respondent/complainant and countersigned by their respective counsel. 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 an amount of ` **.3500/-** , as per order dated 13.6.2011 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 ` **.3500/-** to the Kerala State Legal Services Authority, vide Receipt No. 329 dated 18.6.2011 in terms of the decision of the Supreme Court. As I am satisfied with the terms and averments contained in the compounding petition, which is signed by ## **Crl.R.P.No. 1598 of 2011** ## **-:5:-** 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** MBS/ **Crl.R.P.No. 1598 of 2011** **-: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 ## **Crl.R.P.No. 1598 of 2011** ## **-:7:-** grievance. 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/ ## **Crl.R.P.No. 1598 of 2011 -:8:-** **V.K.MOHANAN, J.** -------------------------------------------Crl.A.NO. OF 200 ----------------------------------J U D G M E N T ## **Crl.R.P.No. 1598 of 2011** ## **-:9:-** DATED: -2- 2010 ## **Crl.R.P.No. 1598 of 2011** ## **-:10:-** **V.K.MOHANAN, J** . O.P.No. **JUDGMENT** ## **Crl.R.P.No. 1598 of 2011** ## **-:11:-** Dated:.. **V.K.MOHANAN, J** . O.P.No. **JUDGMENT** ## **Crl.R.P.No. 1598 of 2011** ## **-:12:-** Dated:..