M Mohammed Ali vs P A Suresh

J.M. Khazi, J

Learned counsel for the petitioner is present.

Learned counsel for the respondent is present.

Learned counsel for the petitioner submitted that the petitioner/accused is in judicial custody. His brother is present before this Court.

The compromise petition is filed under Section 320(5) R/w 482 of Cr.P.C. It is supported by joint affidavit filed by complainant as well as brother of the petitioner/accused. It is duly signed by the both the learned counsel. The terms of the compromise petition reads as under:

i) We state that as the petitioner is presently in custody at the District Prison in Madikeri, and he shall be represented by his brother, M.Saleem.

ii) An amount of Rs.40,000/- was given on loan to the petitioner by the respondent herein. When he was unable to repay the amount on time, a case was filed under Section 138 of the Negotiable Instruments Act in C.C.No.818/14 before the Pri.Civil Judge and JMFC at Virajpet. There is no doubt that the accused/petitioner has no criminal intention nor did he commit any crime intentionally. It was a clear error in judgment and no ill-intention or criminal intent whatsoever was involved.

iii) We state that on going through the records and hearing both sides, the learned Judge passed a judgment dated 04.11.2019 in C.C.No.818/2014 sentencing the petitioner herein to repay an amount of Rs.80,000/- and undergo simple imprisonment of one year.

iv) We state that having no other option, the petitioner filed an appeal before the II Addl. District and Sessions Judge at Virajpet in Crl.Appeal No.5032/2019. the appellate Court initially suspended the sentence but later, regrettably, upheld the judgment of the trial Court vide judgment dated 09.09.2022.

v) I, the complainant herein, state that the petitioner has repaid the full amount to me and I have no desire to prosecute the matter further. the same was brought to the knowledge on the Prl.Civil Judge and JMFC at Virajpet in C.C.No.818/14 vide a memo dated 03.11.2022.

vi) We state that the petitioner is suffering from heart disease and being kept in custody is exacerbating his condition.

vii) Under the present facts and circumstances, the continuation of the prosecution would be nothing but an abuse of the process of law and therefore, pray that this Hon'ble Court exercises its inherent powers under Section 482, to secure the ends of justice and quash the proceedings as having been settled.

viii) We state that we have filed this Affidavit and made the statements in the affidavit voluntarily and of out own volition. We are neither under duress nor subjected to any pressure to file this Affidavit. We therefore pray that this Hon'ble Court be pleased to take this Affidavit on record and treat that the matter as having been settled and quash the proceedings, to secure the ends of justice".

The cheque amount is of Rs.40,000/- the trial Court has convicted the petitioner/accused and sentenced him to undergo simple imprisonment of for period of one year and to pay fine of Rs.80,000/-.

The Sessions Court has dismissed the appeal filed by the petitioner/accused and confirmed the Order passed by the Trial Court.

Learned counsel for petitioner/accused has filed a memo along with documents. These documents includes a memo submitted by the complainant before the trial Court stating that he has received the entire amount from the complainant. However, balance of Rs.5,000/- to be defrayed to the State towards prosecution expenses, would be deposited today.

Leaned counsel for petitioner is permitted to deposit Rs.5,000/- today before the Trial Court.

In the light of the compromise entered into between the parties, I proceed to pass the following:

ORDER

i) The Criminal Revision Petition is allowed.

ii) Impugned order dated 09.09.2022 in Crl.A.No.5032/2019 passed by the II Additional District and Sessions Judge, Kodagu-Madikeri, sitting at Virajpet, by confirming the judgment and order dated 04.11.2019, passed by the Principal Civil Judge and JMFC, Virajpet in C.C.No.818/2014, are set aside. Consequently petitioner/accused is acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.

iii) The Trial Court shall release the petitioner/accused as soon as the petitioner/accused shall deposit balance amount of Rs.5,000/- to the State towards prosecution expenses.

iv) All the pending I.A.s., stand disposed of as no further order is required