K.Subramanian vs R.Rajathi Tr.Poa

R.Rajathi Rep. by P.O.A. P. Kaliappan ...Respondent (s) 2

ORDER

1. By filing this petition, the petitioner has prayed to review

and recall order dated September 11, 2008 passed by this

Court dismissing SLP (Crl.) No.6974 of 2008 @ Crl.M.P.

No.14586 of 2008, on the ground that the amount of

Rs.4,52,289/- payable by the petitioner to the original

complainant, i.e. the respondent herein, is already paid

pursuant to the compromise between the parties and the

petitioner be permitted to compound the offence. The

petitioner has filed Crl. M.P. No.12801 of 2009, to condone 3

delay of 39 days, caused in filing review application and Crl.

M.P. No.12803 of 2009 to permit him to compound the offence

and acquit him by setting aside the conviction recorded in

Criminal Case No.726 of 2003 by the learned Judicial

Magistrate Karur. The petitioner has filed another Crl.M.P.

No.12804 of 2009 with a prayer to permit him to produce

affidavit sworn by him stating that pursuant to compromise

between him and the respondent, he has paid Rs.4,52,289/-

to the respondent as well as affidavit sworn by P.Kaliappan,

power of attorney holder of R.Rajathi stating that pursuant to 4

the compromise, he has received a sum of

Rs.4,52,289/- as additional documents.

2. This Court has heard the learned Counsel for the

petitioner and considered the documents forming part of

S.L.P.(Crl) No. 6974 of 2008 and this application.

3. From the record, it is evident that the petitioner

purchased yarn from Dharani. A. Traders of

R.Rajathi, on credit basis. The petitioner had to pay

a sum of Rs. 4,52,289/- to R.Rajathi. In discharge

of his debt, the petitioner issued three cheques 5

each dated March 7, 2003 for a sum of

Rs.1,51,600/-, Rs.1,17,302/- and Rs.1,83,360/-

respectively. The respondent presented the

cheques in bank for realisation on March 7, 2003,

but they were returned unpaid with remark

"exceeding of arrangements''.

4. The respondent after serving statutory notice on the

petitioner filed complaint in the Court of Learned

Judicial Magistrate, Karur under Section 138 of

Negotiable Instruments Act.

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5. The Trial Court by Judgment dated September 21, 2004

convicted the petitioner under Section 138 and

sentenced him to Simple Imprisonment for one year

and fine of Rs.5000/- in default Simple

Imprisonment for 3 months. Feeling aggrieved, the

petitioner preferred Criminal Appeal No.107 of 2004

before Sessions Court which was dismissed on

24.12.2004. Thereupon, the petitioner filed

Criminal Revision Application No.179 of 2005

before the Madurai Bench of Madras High Court 7

which was dismissed on January 30, 2008.

Therefore, the petitioner filed SLP (Crl) No.6974 of

2008 @ CRL.M.P. No.14586 of 2008 which was also

dismissed on September 11, 2008. Thereafter a

compromise was entered into and petitioner claims

that he has paid Rs.4,52,289/- to respondent. In

support of this claim, the petitioner has produced

affidavit sworn by him on December 1, 2008. The

petitioner has also produced affidavit sworn by

P.Kaliappan, Power of Attorney holder of R.Rajathi 8

on December 1, 2008 mentioning that he has

received a sum of Rs.4,52,289/- due under the

dishonoured cheques in full discharge of the value

of cheques and he is not willing to prosecute the

petitioner. The Learned Counsel for the petitioner

states at the bar that the petitioner was arrested on

July 30, 2008 and has undergone the sentence

imposed on him by the Trial Court and confirmed

by Sessions Court, High Court as well as by this

Court. The two affidavits sought to be produced by 9

petitioner as additional documents would indicate

that indeed a compromise has taken place between

petitioner and the respondent and the respondent

has accepted the compromise offered by petitioner

pursuant to which he has received a sum of

Rs.4,52,289/-. In the affidavit filed by the

respondent a prayer is made to permit the

petitioner to compound the offence and close the

proceedings.

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6. Having regard to the salutary provisions of Section 147 of

Negotiable Instruments Act read with Section 320 of

the Code of Criminal Procedure, this Court is of the

opinion that in view of the compromise arrived at

between the parties, the petitioner should be

permitted to compound the offence committed by

him under Section 138 of the Code.

7. For the foregoing reasons CRL.M.P. No.12801 of 2009 in

which prayer to condone the delay of 39 days

caused in filing review application is allowed and 1

delay is condoned. The Review Petition succeeds.

The Order dated September 11, 2008 dismissing

SLP (Crl) No.6974 of 2008 @ CRL.M.P. No.14586 of

2008 is recalled. The said SLP is restored on file

with its original number.

8. The CRL.M.P. No.12804 of 2009 in which the prayer is

made by petitioner to permit him to produce

affidavits sworn by him on December 1, 2008 as

well as affidavit sworn by P. Kaliappan power of

attorney holder of R. Rajathi on December 1, 2008, 1

as additional documents is allowed. CRL. M.P.

No.12803 of 2009 in which the petitioner has

prayed to permit him to compound the offence and

acquit him by setting aside the conviction recorded

in Criminal case No. 726/2003 under Section 138

of the Negotiable Instruments Act by Learned

Judicial Magistrate, Karur is allowed. The

petitioner is permitted to compound the offence.

The Order of conviction and sentence recorded by

all the Courts are hereby set aside and petitioner is 1

acquitted of the charge leveled against him. All the

applications including Review Petition accordingly

stand disposed of as also SLP (Crl.) No.6974 of 2008

@ CRL.M.P. No.14586 of 2008 in terms of this

Order.

.........................................J. (J.M. PANCHAL)

.........................................J. (CYRIAC JOSEPH) 1

NEW DELHI NOVEMBER 5, 2009.