T. Augusty v. Narayanan Athingal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 6TH DAY OF FEBRUARY 2012/17TH MAGHA 1933** **CRRP.No. 775 of 1998 ( )** **------------------------** **CRA.175/1997 of ADDL.SESSIONS COURT,THALASSERY CC NO.852/1995 of J.M.F.C.,MATTANNUR** **------** ## **REVISION PETITIONER/RESPONDENT/ACCUSED:** **---------------------------------------** **T.AUGUSTY, S/O.AUGUSTY, THURUTHEL HOUSE, VANIYAPPARA, CHARAL, KANNUR DIST.** **BY ADVS.SRI.P.NARAYANAN SRI.GEORGE MATHEWS** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **---------------------------------** **NARAYANAN ATHINGAL, S/O.VELAYUDHAN, ATTAYAODU, ANGADIKADAVU P.O, KANNUR DISTRICT.** **BY SMT.CELINE JOSEPH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **VK** ## **P.BHAVADASAN, J.** ---------------------------------------------------------------------Crl.M.Application Nos.596/12 & 597/12 in Crl.RP & Crl.RP No.775 of 1998 ----------------------------------------------------------------------Dated this the 6[th] day of February 2012 ## Order Crl.M.Appl.No.596/12 is a petition, seeking restoration of Crl.RP No.775/98, which was dismissed on the ground that the counsel had reported no instruction on 21.03.2007. 2. The petitioner was the accused in CC No.852/95 for having committed the offence punishable under Section 138 of the Negotiable Instruments Act. The allegation was that the accused had issued a cheque to discharge a debt of Rs.70,000/- due to the complainant, which on presentation bounced, for want of funds. Since the amount remained unpaid, a complaint was filed. Suffice is to say that ultimately, accused was found guilty and was convicted and sentenced by the trial court. The matter was carried in appeal, which was dismissed, confirming the conviction and sentence passed by the trial court. Crl.RP 775/98 2 3. Aggrieved by the appellate decision, Criminal Revision Petition No.775/98 was filed before this court. On 21.03.2007, the counsel appearing for the revision petitioner submitted that there is no instruction and this court dismissed the revision petition. The revision petitioner would say that he was not aware of those proceedings on 21.03.2007 as it was not communicated to him. It is pointed out that there was a civil suit with reference to the same liability as OS No.161/97 before the Munsiff's Court, Kuthuparamba. The said suit was decreed and the decree holder has filed EP No.387/02 for realizing the decree debt. During the pendency of the execution proceedings in the said suit, the matter was settled between the parties on certain terms and conditions and the EP was closed recording the compromise. One of the terms was that the complainant in these proceedings will take immediate steps for filing a compromise petition before this court. Since the amount had been paid, the entire dispute was settled and the petitioner believed that Crl.RP 775/98 3 whatever is necessary in the matter had been done and he did not pursue the matter. The delay was not due to any deliberate act on the part of the revision petitioner. There is no wilful laches or negligence in bringing the matter before this court. It was also pointed out that in the interest of justice, it is essential to restore the case to file, the compromise be recorded. 4. The first question that arises for consideration, is whether the petition for restoration can be allowed. This issue has been considered in the decisions **Keralakumaran v. State of Kerala** (1995 (1) KLT 789) and **K.P.Ramachandran v. M.A.Radhakrishnan** (1984 KLT 416). In the decision in **Keralakumaran v. State of Kerala,** the case was dismissed for default and it was held that an order dismissing an appeal for default does not amount to a judgment or a final order coming within the scope of S.362 and that High Court has inherent power to restore any matter dismissed for default or non-prosecution Crl.RP 775/98 4 on sufficient reason being shown. The relevant portion of the said decision reads as follows : “Section 362 relates only to judgment or final order disposing of a case. What is a judgment or a final order is not seen defined in the Code. But the word 'judgment' is understood to mean an order in a trial terminating in either conviction or acquittal of the accused. It has also been held that judgment means the expression of opinion of the court arrived at after due consideration of the evidence and all the arguments. Understood in this light, every order under the provisions of the Code cannot be considered to be a judgment within the meaning of S.353 or coming under the scope of S.362 of the Code. In short, there must be an investigation of the merits on evidence and after hearing arguments in order to constitute a judgment. In he case of an appeal, such judgment has to be one rendered on merits after hearing counsel for appellant or the appellant, as the case may be, and Public Prosecutor or counsel appearing for respondent. An order dismissing an appeal for default does not therefore amount to a judgment or a final Crl.RP 775/98 5 order coming within the scope of S.362 of the Code. The views of the various High Courts expressed in the aforesaid decisions are in favour of restoration of an appeal or revision dismissed for default in exercise of the powers of this court under Section 482 of the Code of Criminal Procedure. Since that power does not inhere in courts subordinate to the High Court, the question of restoration of an appeal or a revision by a subordinate court does not arise. For that reason, it has to be held that the courts subordinate to the High Court are not competent to dismiss an appeal or revision for default. When once this court is found to have power to restore a criminal appeal or revision or any other criminal proceeding dismissed for default for the reason that it is neither a judgment nor a final order, it necessarily follows that the power of dismissal also inheres in the High Court.” There is no reason as to why the said principles should not be applied to the facts of the present case. There is nothing to show that the averments in the petition are false or filed with ulterior motives. It is a probable reason. Of course, the Crl.RP 775/98 6 petitioner ought to have been more diligent. But, due to the settlement of the matter between the parties, he bona fide believed that action will be taken by the complainant and he remained passive. So, he cannot be accused of any wilful delay and laches. Moreover, it is also pointed out that the matter has been settled between the parties. 5. After going through the petition, it is felt that sufficient cause has been shown to restore the petition. Accordingly, the order dated 21.03.2007, dismissing the revision petition on the ground that the counsel had submitted that there is no instruction, is set aside and the revision petition is restored to file. 6. Crl.M.A No.597/12 is a petition jointly filed by the complainant and the accused, stating that the parties have arrived at a settlement and that the complainant has no further grievance in the matter. On going through the petition, there is no reason as to why the compromise should not be accepted. In the light of the decision in **Damodar.S.Prabhu v. Sayed Babalal** (2010(2) KLT 587), 7 Crl.RP 775/98 the revision petitioner has to pay 15% of the cheque amount as costs. But, considering the fact that the entire matter has been settled long ago, it may not be proper for this court to impose costs on the petitioner at this point of time. In the result, this revision petition is allowed. The conviction and sentence as imposed by the courts below are set aside and the accused shall stand acquitted of the offence, under Section 320(8) of Cr.P.C. Warrant, if any, issued against the petitioner shall be immediately withdrawn. ## **P.Bhavadasan, Judge** sta Crl.RP 775/98 8