IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1784 of 2009()
1. RAJESH, S/O. KRISHNANKUTTY,
... Petitioner
2. K.P. MOHANAN, S/O. RAMAN,
Vs
1. K.A. JOSE, S/O. ABRAHAM,
... Respondent
2. STATE OF KERALA, REP. BY THE
For Petitioner :SRI.JIJI THOMAS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :07/08/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.1784 of 2009
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Dated this the 7th day of August, 2009
O R D E R
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Heard counsel on both sides and Public Prosecutor.
2. This revision is in challenge of judgment of learned
additional Sessions Judge (Adhoc-II), Kalpetta in Crl. Appeal No.86 of
2007 confirming conviction and sentence of petitioners for offence
punishable under Sections 420 and 468 read with 34 of the Indian
Penal Code (for short, “the IPC”). During the pendency of revision,
petitioners and respondent No.1 settled the dispute between them and
filed Crl.M.A.No.5450 of 2009 seeking permission to compound the
offence.
3. Case is that on 31.10.2002 petitioners approached
respondent No.1 with a request for a loan of Rs.34,000/- to petitioner
No.1. Respondent No.1 accepted that request. At that time, for
repayment of the amount petitioner No.1 issued a cheque (Ext.P2).
Respondent No.1 presented that cheque for encashment but it was
returned for the reason that signature of the account holder differs.
On enquiry it was revealed that the cheque was actually drawn on
the account maintained by petitioner No.2. Thereon complaint was
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preferred for offences as stated above. Police after investigation
submitted final report. Leaned magistrate found that petitioners
committed offences as alleged. That has been confirmed by the
appellate court.
4. So far as offence under Section 420 of the IPC is concerned
that offence is compoundable with permission of the court at the
instance of the person deceived. In this case respondent No.1 who is
deceived has come forward for composition of the offence. I have
gone through the application and find no reason to think that the
composition is not voluntary. Permission to compound the offence to
the extent it concerned offence under Sec.420 of the IPC can be
granted. Hence Crl.M.A. No.5450 of 2009 shall stand allowed to that
extent.
5. So far as offence under Sec.468 of the IPC is concerned
that offence is not compoundable. Learned counsel placed reliance
on the decision of the Supreme Court in Nikhil Merchant v.
Central Bureau of Investigation (2008 (3) KLT 769 (SC) to
contend that even if offence under Sec.468 is not compoundable this
Court can exercise its power under Section 482 of the Code of
Criminal Procedure. Decision cited by learned counsel concerned
quashing of proceeding at the stage of investigation involving
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offences which are not compoundable invoking Sec.482 of the Code.
In that case Supreme Court was satisfied that in view of the
settlement between the parties there is no possibility of evidence
being let in support of prosecution. In this case there is a concluded
finding against petitioners on the strength of evidence let in by the
prosecution. So far as offence under Sec.468 of the IPC is
concerned there is sufficient evidence to show that petitioners jointly
approached respondent No.1 requesting loan of Rs.34,000/- for
petitioner No.1 and for repayment of that amount Petitioner No.1
issued Ext.P2, cheque which is proved to be on the account
maintained by petitioner No.2. That amounted to forgery of the
instrument as defined in Sec.465 of the IPC punishable under Sec.468
of the IPC. There is no reason to interfere with the conviction of
petitioners under Sec.468 read with 34 of the IPC. However in
considering whether sentence awarded is excessive the settlement
reached between petitioners and respondent No.1 can be taken into
account. Respondent No.1 has no grievance now. Learned counsel
submits that amount payable to respondent No.1 has already been
paid.
6. I have allowed composition of the offence under Sec.420 of
the IPC. In these circumstances I am satisfied that simple
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imprisonment till rising of the Court will be sufficient in the ends of
justice so far as offence under Sec.468 of the IPC is concerned.
Sentence for that offence is modified accordingly.
Resultantly, revision petition is allowed in part. Composition
entered between petitioners and respondent No.1 regarding the
offence under Sec.420 of the IPC is accepted and that shall have
effect of acquittal of petitioners of that offence under Sec.320(8) of
the Code. So far as offence under Sec.468 of the IPC is concerned
sentence awarded under that Section is modified as simple
imprisonment till rising of the court.
Petitioners shall appear in the trial court on 7.9.2009 to receive
the sentence. Until then execution of warrant against petitioners will
stand in abeyance.
Criminal Miscellaneous Application No.5449 of 2009 shall stand
dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv