IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2125 of 2007()
1. KURIAN ABRAHAM, AGED 59 YEARS,
... Petitioner
Vs
1. K.C.KURUVILA, AGED 56 YEARS,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.A.G.ADITYA SHENOY
For Respondent :SRI.V.ARUN
The Hon'ble MR. Justice R.BASANT
Dated :02/07/2007
O R D E R
R.BASANT, J
------------------------------------
Crl.M.C.No.2125 of 2007
-------------------------------------
Dated this the 2nd day of July, 2007
O R D E R
The petitioner has been found guilty, convicted and sentenced in
a prosecution under Section 138 of the N.I Act. The verdict of guilty,
conviction and sentence have now become final with the disposal of
the criminal revision petition by another Bench of this Court as per
order dated 11.01.2005. The petitioner faces a sentence of
imprisonment for a period of one month. There is also a direction to
pay an amount of Rs.1,03,375/- as compensation. In default of
payment of the compensation amount, there is a direction to undergo
S.I for a further period of one month.
2. The petitioner has now been committed to prison to
undergo the substantive sentence of imprisonment for one month.
3. At this stage, the petitioner and the complainant have
come together before this Court with a petition under Section 147 of
the N.I Act. In that petition, it is reported to the Court that the
parties have settled their disputes and the complainant has
compounded the offence allegedly committed by the petitioner herein.
The application for composition is duly signed by the rival contestants
and counter signed by their respective counsel. The learned counsel
for the 1st respondent/complainant Advocate Arun Viswanathan
Crl.M.C.No.2125 of 2007 2
confirms to this Court that the matter has been settled between the
parties. He vouches for the signature of the complainant in the
application for composition.
4. Both the counsel submit that the matter has been settled.
I am satisfied from the submissions made at the Bar, from the
averments in this Crl.M.C and the joint statement filed by the rival
contestants duly counter signed by their counsel as also the
submissions made by the learned counsel for the 1st respondent that
the parties have willingly and voluntarily settled their disputes and
the complainant has compounded the offence under Section 138 of
the N.I Act committed by the petitioner. The liability to pay the entire
amount of compensation due has also been discharged, it is
submitted.
5. The revision petition having already been disposed of, the
learned counsel for the accused/petitioner and the 1st
respondent/complainant place reliance on the dictum in Sabu George
v. Home Secretary [2007(1) KLT 982] to contend that the
composition may be accepted and the unjust consequence of the
accused being compelled to undergo incarceration in prison for a
period of one month in execution of the sentence even after
composition of the offence may be avoided. The counsel inform the
Court that the entire composition amount has been paid and
discharged. The counsel further submit that the accused has been
Crl.M.C.No.2125 of 2007 3
undergoing imprisonment in execution of the substantive sentence of
imprisonment for the past 4 days.
6. I am satisfied that notwithstanding the disposal of the
criminal revision petition, this is an eminently fit case where the
powers under Section 482 Cr.P.C can and ought to be invoked as
permitted in Sabu George v. Home Secretary to avoid the unjust
consequence of the petitioner being forced to undergo substantive
sentence of imprisonment for the offence under Section 138 of the N.I
Act.
7. This Crl.M.C is, in these circumstances, allowed. The
verdict of guilty, conviction and sentence of the petitioner in the
prosecution under Section 138 of the N.I Act which has become final
with the order dated 11.1.2005 in Crl.R.P.No.3391 of 2004 is hereby
set aside. The petitioner, if he is in prison, shall be released from
custody forthwith.
8. Hand over a copy of this order to the learned counsel for
the petitioner today itself.
(R.BASANT, JUDGE)
rtr/-
Crl.M.C.No.2125 of 2007 4