Kerala High Court
The vs Nadapuram on 2 August, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 25TH DAYOF AUGUST 2017/3RD BHADRA, 1939
Crl.Rev.Pet.No. 971 of 2017
-----------------------------------------
SUO MOTU PROCEEDINGS INITIATED AS PER ORDER DATED 02.08.2017 OF
THIS HONOURABLE COURT (ARISING OUT OF THE IMPUGNED ORDER
DATED 29.11.2014 IN S.T.NO. 1157/2010 ON THE FILE OF THE JUDICIAL FIRST
CLASS MAGISTRATE, NADAPURAM
---------------
SUO MOTU
RESPONDENT(S) :
-----------------------------
1. RAMLA N.V,
W/O. SULAIMAN, AGED 42 YEARS, NADUVILANGUMMAL
HOUSE, PANDIRIKKARA, AVADUKKA P.O.,
PERUVANNAMUZHI KOZHIKODE DISTRICT (ACCUSED).
2. HAFSA BEEVI,
W/O. RASAQUE, KIZHAKKE THODUKAYIL HOUSE, PARAKODE,
VALIYA PARAMBU, KODUVALLY, KOZHIKODE DISTRICT
(COMPLAINANT).
3. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM- 682 031.
R1 BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR
R2 BY ADV. SRI.ARUN AJAY SHANKAR
R3 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 25-08-2017, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
Msd.
ALEXANDER THOMAS, J.
==================
Crl.R.P.No.971 of 2017 (Suo Motu)
Dated==================2017
this the 25th day of August,
O R D E R
The aforecaptioned suo motu revisional proceedings arise out of
the impugned order dated 29.11.2014 rendered by the Judicial First Class
Magistrate's Court, Nadapuram, in S.T.No.1157/2010. The details about
the origination of these suo motu proceedings have been dealt with in
the order dated 2.8.2017 passed by this Court in these suo motu
proceedings, which reads as follows:
'The suo motu revision arises out of the impugned order dated
29.11.2014 in S.T.No.1157 of 2010 on the file of the Judicial First Class
Magistrate Court, Nadapuram.
Section2.138 of the Negotiable Instruments Act in S.T.No.1157 of 2010 and
The petitioner was accused for the offence punishable under
S.T.No.1158 of 2010 on the file of the Judicial First Class Magistrate Court,
Nadapuram, for the offence punishable under Section 138 of the Negotiable
Instruments Act, instituted on the basis of a complaint. The accused and the
complainant in both the cases are the same persons concerned. The trial
court as per the impugned judgment rendered on 27.6.2011 had convicted the
petitioner for the abovesaidIn
2010 and 1158 of 2010.
undergo simple imprisonmentS.T.No.1157
offence in bothofthe cases, viz. S.T.Nos.1157 of
till the rising2010,the court and to pay
she was sentenced to
of
compensation of Rs.85,000/- (which is the cheque amount) to the
complainant under Section 357(3) of the Cr.P.C. and in default thereof, she
was ordered to undergo simple imprisonment for one month. In S.T.No.1158
of 2010, she was sentenced to undergo simple imprisonment till the rising of
the court and to pay compensation of Rs.65,000/- (the cheque amount) to
the complainant under Section 357(3) of the Cr.P.C. with default clause of one
month's simple imprisonment.
3. The petitioner had filed Crl.Appeal No.205 of 2016 before the
abovesaid appellate Sessions Court concerned only to impugn the conviction
and sentence imposed in S.T.No.1158 of 2010 which was dismissed on
30.12.2016. The conviction and sentence imposed in S.T.No.1158 of 2010 as
confirmed in Crl.Appeal No.205 of 2016 has been challenged by the petitioner
by filing the Crl.R.P.No.528 of 2017.
4. It is not in dispute that the conviction and sentence imposed on
the petitioner in S.T.No.1157 of 2010 was never challenged by the accused by
Crl.R.P.971/17 - : 2 :-
filing a Crl.Appeal. The copy of the transcript of the proceedings of the trial
court in S.T.No.1157 of 2010 will show that on 27.6.2011, the trial court had
rendered the abovesaid judgment, whereby the accused was convicted and
sentenced as mentioned above. Since there was no challenge against the said
judgment in S.T.No.1157 of 2010, the matter came to be posted before The the
learned Magistrate for execution of the sentence in that case.
proceedings in that regard from 25.7.2011 up to 29.11.2014 as shown in the
abovesaid proceedings of the trial court are as follows :
25/07/11 Accused absent convicted case. Issue NBW 13.09.11
13/09/11 Repeat NBW to 13.11.11
13/11/11 Repeat NBW to 12.12.11
12/12/11 No sitting case reposted to 13.01.12
13/01/12 No sitting case reposted to 22.2.12
22/2/12 Repeat NBW to 27.3.12
27/3/12 Repeat NBW to 27.06.12
27/6/12 Repeat NBW to 25.9.12
25/9/12 Repeat NBW to 27.10.12
27/10/12 Repeat NBW to 6.12.12
06/12/12 Repeat NBW to 6.2.13
06/02/13 NBW and notice to sureties to 25.3.13
25/3/13 Repeat NBW and notice to sureties to 29.4.13
29/4/13 Repeat NBW and notice to sureties to 24.6.13
24/6/13 No sitting reposted to 20.07.13
20/07/13 Accused is absent, repeat NBW to 3.10.13
03/10/13 Accused is absent, repeat NBW to 26.11.13
26/11/13 Accused is absent. Repeat NBW to 1.1.14
01/01/14 No sitting case reposted to 1.4.14
01/04/14 Accused is absent. Repeat NBW to accused to 1.7.14.
1/07/14 Accused is absent. Repeat NBW to accused and notice to
sureties to 26.8.14
26/8/14 Accused is absent, S2 is served. Repeat NBW to accused and
notice to S1 to 6.10.14
3/09/14 Case is advanced.
against the accused.Accused
Suretiessurrendered.MC. Registered
are exonerated. Bailed out.
For complainant's evidence to 6.10.14.
06/10/14 No sitting case reposted to 27.11.14
27/11/14 Complainant is absent. No representation. Accused is
absent. Call on 29.11.14
Crl.R.P.971/17 - : 3 :-
29/11/14 Complainant is absent. No representation. Accused is
present. Complainant is not turned up in spite of giving
sufficient opportunities. I am satisfied that the complainant
is not interest in the matter. In the circumstances accused
is acquitted u/s.256[1] of Cr.P.C."
The learned Magistrate on 3.9.2014 had advanced the case when the
accused had surrendered and it is noted as follows :
"Case is advanced. Accused surrendered. M.C. registered against the accused.
Sureties are exonerated. Bailed out. For complainant's evidence to 6.10.2014."
Therefore, it appears that the trial court had wrongly proceeded on the
premise as if the judgment of conviction and sentence had not been
rendered and that the case was posted for taking action against the accused
and the sureties in as much as she had absconded. Further the trial court
has wrongly proceeded for complainant's evidence and the case was then
adjourned to 6.10.2014. There was no question of the trial court posting
the case for complainant's evidence in as much as the main matter in the
trial was already disposed of and the judgment of conviction and sentence
was already rendered by the trial court in S.T.No.1157 of 2010 on
27.6.2011. Thereafter, on 6.10.2014, it is noted that there was no sitting
and the case was re-posted to 27.11.2014. On 27.11.2014, it is noted that
the complainant is absent and there was no representation for the
complainant.
29.11.2014. OnThe accused is absent and the case was adjourned to
29.11.2014, it is further noted by the learned Magistrate as
follows :
"Complainant is absent. No representation. Accused is present. Complainant is
not turned up in spite of giving sufficient opportunities. I am satisfied that the
complainant is not interest in the matter. In this circumstancs accused is acquitted under
Section 256(1) of Cr.P.C."
So, from a reading of the judgment of the trial court rendered on
27.6.2011 as well as the subsequent proceedings of the learned
Magistrate, it appears that the learned Magistrate has misconstrued the
situation as if the case was pending for trial and due to the absence of the
complainant, the learned Magistrate has wrongly ordered on 29.11.2014
to acquit the accused purportedly by virtue of the enabling provisions
contained in Section 256(1) of the Cr.P.C. These aspects came to the
notice of this Court during the consideration of Crl.R.P.No.528 of 2017.
At that point of time, the learned counsel appearing for the revision
petitioner/accused had made available a certified copy of the present
impugned order of acquittal and it is also interesting to note that the
cause title of the said certified copy of the order would show as if the said
order was rendered on 29.11.2013. So also, the concluding sentence in
that order would show that the pronouncement of the order in open court
was on 29th November, 2013. The certified copy of the said order dated
29.11.2013 of the learned Magistrate reads as follows :
"This complaint is filed U/s.190 of Cr.P.C. alleging commission of offence
punishable u/s.138 of NI Act Complainant is absent. No representation. Accused is
present. Complainant is not turned up in spite of giving sufficient opportunities. I am
Crl.R.P.971/17 - : 4 :-
satisfied that the complainant is not interested in the matter. In these circumstance accused
is acquitted u/s.256(1) of Cr.P.C."
5. From a reading of the transcript of the proceedings of the
trial court as well as from the details given in the certified copy of the order,
it is seen that the copy of the order bears the date 29.11.2013, whereas the
proceedings sheet would show that the order was actually passed on
29.11.2014. Be that as it may, the core of the matter is that the said order
has been passed by the learned Magistrate without any application of mind
and has been passed absolutely without any jurisdiction and prima facie, it
appears that the said order is ultravires and a nullity. Since the accused was
already convicted after the due process of the trial as early as on 27.6.2011,
the trial court had become functus officio to deal with the trial and the
limited jurisdiction retained by that court was only to take further steps in
the matter of execution of the impugned sentence in that case, subject to
any appellate or revisional challenge, etc. Therefore, the subsequent order
passed by the trial court on 29.11.2014 acquitting the accused, would,
therefore, amount to violation of the provisions contained in Section 362 of
the Cr.P.C., which reads as follows :
"362. Court not to alter judgment.- Save as otherwise provided by this Code or
by any other law for the time being in force, no Court, when it has signed its judgment or
final order disposing of a case, shall alter or review the same except to correct a clerical or
arithmetical error."
detailed6.orderIn on 7.7.2015 in Crl.R.P.No.528 of 2017, which reads as
the light of these aspects, this Court had passed a
follows :
"The impugned conviction and sentence in this case arises out of the common
judgment dated 27.6.2011 rendered by the Judicial First Class Magistrate's Court,
Nadapuram, in S.T.No.1158/2010. S.T.No. 1158/2010 was jointly tried along with
S.T.No.1157/2010 and a common judgment was rendered on 27.6.2011, whereby the
accused was convicted and sentenced in both the cases. Two separate cheques were given
for Rs.85,000/- and Rs.65,000/-, thus totally to Rs.1.5 lakhs, which is stated to be the total
liability owed by the accused to the complainant. It appears that the petitioner (accused)
had filed Crl.Appeal No.205/2016 to impugn the conviction and sentenced imposed in
S.T.No.1158/2010 as per the abovesaid judgment on 27.6.2011. It appears that no separate
criminal appeal has been filed to challenge the conviction and sentence in
S.T.No.1157/2010. The learned counsel for the petitioner accused would submit that after
the rendering of the common judgment on 27.6.2011 in S.T.Nos.1157 and 1158 of 2010, the
trial court had again considered S.T.No.1157/2010 and had passed order on 29.11.2013,
which reads as follows:
"IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS, NADAPURAM
Present: Sri. M.C.Antony, LL.M., Judicial magistrate of First Class
Date this the 29th day of November, 2013
Case No. ST 1157/10
Complainant :Hafsa Beevi, W/o.Resak Vailissery (late)
Kizhakke Thodukayil House, Parakkode
Vavad amsom, Koduvalli, Kozhikode.
Accused : Ramla.N.V., S/o.Sulaiman, aged.30
Naduvilangummal House, Pandeerikkara,
Peruvannamuzhi, Aavadukka, Kozhikode District.
(By Adv.Sri.Fareed Kalleri)
Crl.R.P.971/17 - : 5 :-
Offence U/s 138 of Negotiable Instrument Act.
ORDER
This complaint is filed U/s. 190 of Cr. P.C. alleging commission of offence punishable u/s.138 of NI Act.
Complainant is absent. No representation. Accused is present. Complainant is not turned up in spite of giving sufficient opportunities. I am satisfied that the complainant is not interested in the matter. In these circumstance accused is acquitted u/s.256 (1) of Cr.P.C.
(Dictated to the Confidential Assistant, transcribed by her, corrected and pronounced by me in open court, this the 29th day of November, 2013.) Sd/-
Judicial First Class Magistrate, Nadapuram"
2. It is not known as to how the learned Magistrate could have acquitted the accused under Sec.256(1) of the Cr.P.C. as per the order dated 29.11.2013 after the conviction and sentence imposed on the very same accused in the very same complaint on 27.6.2011. The learned Advocates appearing on both sides are also at a loss to explain to this Court how this strange "acquittal" has occurred. But the learned Advocates appraise this Court that presumably it may be that after the conviction and sentence rendered on 27.6.2011, the complaint in S.T.No. 1157/2010 must have been posted before the learned Magistrate on judicial side for execution of the impugned sentence and at that stage, the complainant or her counsel may not have appeared and the learned Magistrate would have erroneously passed the order dated 29.11.2013, on the wrong assumption that the case in S.T.No.1157/2010 was pending for trial. Any way, this Court is also at a total loss to even remotely fathom how this strange "acquittal" has been rendered by the learned Magistrate subsequently on 29.11.2013, after a considered judgment of conviction and sentence was rendered on 27.6.2011. Prima facie, the above lapses seem to be quite serious and would raise a big question mark about the credibility and the basic efficiency of the trial magistracy in cases like this. It appears that the earlier common judgment dated 27.6.2011 was rendered by one Sri.V.K.Subrhamnian Namboodiri, who appears to be the then incumbent in the office of the Judicial First Class Magistrate's Court, Nadapuram. Whereas the latter order dated 29.11.2013 is seemed to be rendered by one Sri.M.C.Antony, who must have been the successor in office.
3. It is also seen that the accused had challenged the conviction and sentence in S.T.No.1158/2010 before the Sessions Court, Kozhikode by filing Crl.Appeal No.205/2016. The appellate court has dismissed Crl.Appeal No.205/2016, thus confirming the conviction and the sentence in S.T.No.1158/2010. The present revision is directed only against the conviction and sentence in S.T.No.1158/2010 as confirmed by in Crl.Appeal No.205/2016. To a specific query, as to whether the accused has filed any separate criminal appeal to challenge the conviction and sentence in S.T.No.1157/2010, the counsel appearing for the petitioner (accused) could not immediately ascertain the details, but pointed out that presumably on account of the abovesaid subsequent order dated 29.11.2013 passed by the learned Magistrate acquitting the accused in S.T.No.1157/2018, the accused would not have preferred any criminal appeal.
4. It is inter alia pointed out by the learned counsel for the petitioner that there was delay of 1750 in filing Crl.Appeal No. 205/2016 and the application for delay condonation was initially dismissed the sessions court, which was challenged by the accused in Crl.R.P.No. 845/2016 before this Court and the same was allowed by this Court on 25.8.2016, etc.
5. The Registrar (Subordinate Judiciary) is requested to examine these Crl.R.P.971/17 - : 6 :-
matters and should conduct an effective inquiry after getting the explanation from the trial court concerned. The trial court should give a detailed report as to how these aspects have occurred and the Registrar (Subordinate Judiciary) after making in indepth inquiry into the matter, should give a meticulous report before this Court for enabling this Court to decide about the further course of action. It may also be examined by the Registrar (Subordinate Judiciary) whether this Court could invoke the suo motu revisional powers conferred on this Court, for correcting any such patent illegality or impropriety, that may come to the notice after such inquiry. Report of the trial court should be obtained within a week. The Registrar (Subordinate Judiciary) may conduct his inquiry and give his report within 10 days thereafter.
6. The Registrar (Subordinate Judiciary) will also ascertain from the Sessions Court, Kozhikode, as to whether any separate criminal appeal was preferred by the accused challenging his conviction in sentence in S.T.No.1157/2010 on the file of the Judicial First Class Magistrate's Court, Nadapuram. In this regard, it may also be ascertained as to the exact date of filing of Crl.Appeal No.205/2016 (arising out of S.T.No.1158/2010) and whether it was accompanied by delay condonation application, the number of days of delay, etc. The Registry may also place the case papers in Crl.R.P.No. 845/2016."
7. Now in compliance with the directions issued by this Court on 7.7.2017, the Registrar (Subordinate Judiciary) has furnished a detailed report in the matter wherein he has clearly opined that the said order appears to have been passed without jurisdiction and that this Court may have to exercise its suo motu revisional powers, so as to set right the illegality. Further, it is stated therein that the supervisory jurisdiction of this Court, being a superior criminal court, enables this Court to consider the legality, regularity and propriety of the order of proceedings of the subordinate criminal court and that it is well within the power of this Court, not withstanding a revision at the instance of any of the parties in S.T.No.1157 of 2010, to consider the legality or propriety of the order of acquittal purportedly rendered on 29.11.2014 by the learned Magistrate.
The said report furnished by the Registrar (Subordinate Judiciary) along with enclosures are accepted on record and would form part of the case papers.
the suo8.motu powers of revision conferred on this Court under Section In the light of these aspects, this Court is convinced that 397 and Section 401 of the Cr.P.C. is to be invoked in the facts and circumstances of this case. Accordingly, the Registry is directed to prepare a memorandum of revision petition in the necessary proforma, so that the legality, correctness and propriety of the impugned order rendered on 29.11.2014 by the learned Magistrate, in acquitting the accused in S.T.No.1157 of 2010, could be considered.
In the said petition to be prepared by the Registry, the accused, the complainant and the State of Kerala represented by the Public Prosecutor, High Court of Kerala, may be made parties thereto and the Registry should ensure that copies of the said revision petition prepared for enabling this Court to take suo motu revisional proceedings, should be served on Sri.Sasthamangalam.S.Ajithkumar, the learned counsel appearing for the accused, Sri.Arun Ajay Shankar, the learned counsel appearing for the complainant, and to Sri.Saigi Jacob Palatty, the learned Crl.R.P.971/17 - : 7 :-
prosecutor appearing for the State. Efforts may be taken by the Registry to ensure that the petition as directed above is prepared and listed for consideration on the judicial side within 10 days from the receipt of copy of this order. The case papers and a copy of this order should be placed by the Registry before the Registrar (Subordinate Judiciary) to take further action in the matter.'
2. Pursuant to the abovesaid orders passed by this Court on 2.8.2017, the Registry has prepared the formal Criminal Revision Petition in this matter as Crl.R.P.No.971/2017 (Suo Motu). The abovesaid revision was admitted by this Court on 21.8.2017, on which day, Sri.Sasthamangalam S.Ajithkumar, Advocate, has taken notice for R-1 (accused), Sri.Arun Ajay Sankar, Advocate had taken notice for R-2 (complainant) and Sri.Saigi Jacob Palatty, learned Public Prosecutor has taken notice for R-3 (State). Hence it was ordered on 21.8.2017 that the service in the petition is complete and accordingly, the revision petition has been posted for disposal today.
3. Heard Sri.Sasthamangalam S.Ajithkumar, learned counsel appearing for R-1 (accused), Sri.Arun Ajay Sankar, learned counsel appearing for R-2 (complainant)and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-3 State.
4. It is common ground that common judgment was rendered by the trial court on 27.6.2011 in S.T.No.1157/2010 and S.T.No. 1158/2010. It is also not in dispute that the convicted accused had filed criminal appeal and thereafter Criminal Revision Petition only in respect of the conviction in S.T.No.1158/2010. The accused had not filed any Crl.R.P.971/17 - : 8 :-
appeal to challenge the legality and correctness of the conviction and sentence imposed as per the judgment dated 27.6.2011 in S.T.No. 1157/2010. The matter in S.T.No. 1157/2010 was posted before the trial court only for execution of the impugned sentence. As already narrated in detail in the order dated 2.8.2017 and in the earlier order dated 7.7.2015 (which have been referred to and quoted in para 6 of the order dated 2.8.2017), the execution of the sentence in relation to S.T.No. 1157/2010 was posted before the learned Magistrate from 25.7.2011 onwards. Ultimately, on 29.11.2014, when the complainant was absent and the accused was preset, the learned Magistrate mistook the case as one which was pending for evidence and trial, and had ordered that the accused is acquitted under Sec.256(1) of the Cr.P.C. in view of the non appearance of the complainant. It is the abovesaid order dated 29.11.2014 passed by the learned Magistrate in S.T.No.1157/2010, which is the subject matter of this revision.
5. The conviction and sentence was rendered in that complaint as early as on 27.6.2011 and thereafter, the Magistrate was having jurisdiction only to entertain the matter for execution of the sentence in that case. Incidentally, it is also interesting to note that the certified copy of the said order dated 29.11.2014 contains also some patent mistakes inasmuch as it has been described therein as if the said order was rendered on 29.11.2013 and not on 29.11.2014. Since the conviction and Crl.R.P.971/17 - : 9 :-
sentence was already imposed by the trial court in S.T.No.1157/2010 as per the judgment dated 27.6.2011, subsequent order passed by the learned Magistrate on 29.11.2014 would amount to reviewing and rewriting the earlier final judgment dated 27.6.2011, which is barred and prohibited in view of the mandatory provisions contained in Sec.362 of the Cr.P.C. It does not require any reiteration of judicial authorities that the said order dated 29.11.2014 passed by the learned Magistrate in S.T.No.1157/2010 is without jurisdiction and is a nullity.
6. There is yet another aspect which has to be dealt with by this Court. The impugned order dated 29.11.2014 is one, which is acquitting the accused under Sec.256(1) of the Cr.P.C. Therefore, it could be possibly contended that a revision is not maintainable as against the order of acquittal inasmuch as the proper remedy for impugning an order of acquittal in complaints like the present one, is to prefer an application for special leave in terms of Sec.378 (4)of the Cr.P.C. in view of the Division Bench judgment of this Court in Omana Jose v. State of Kerala, reported in 2014 (2) KLT 504.
7. Such an argument would have been relevant only if the judgment of acquittal was passed by the trial court in the manner known to law. In the instant case, the learned Magistrate, after passing the final judgment of conviction on 27.6.2011 had become functus officio to deal with the merits of the controversy and his jurisdiction was limited only on Crl.R.P.971/17 - : 10 :-
the aspect relating to the execution of the sentence in that case. Since the lawful proceedings of the learned Magistrate is the judgment of conviction rendered on 27.6.2011, there cannot be bar to interdict the subsequent order dated 29.11.2014 by the exercise of revisional powers of this Court, subject to compliance of the procedure in that regard. Therefore, if the judgment of acquittal was passed by the trial court in the manner known to law, then certainly the bar engrafted in sub section (4) of Sec. 401 of the Cr.P.C. would apply. Since the impugned order dated 29.11.2014 has been passed without jurisdiction, the bar engrafted in Sec. 401(4) of the Cr.P.C. will not be applicable to the facts and circumstances of this case and certainly revisional jurisdiction can be invoked. All the parties concerned including the accused, complainant and the State have been given reasonable opportunity of being heard in the initiation and in the finalisation of this suo motu proceedings. For all these reasons, it is ordered that the impugned order dated 29.11.2014 passed by the Judicial First Class Magistrate's Court, Nadapuram, in S.T.No. 1157/2010 will stand set aside and rescinded.
8. But needless to say, this will be without prejudice to the right of the 1st respondent (accused) to impugn the judgment of conviction rendered by the trial court on 27.6.2011 in S.T.No.1157/2010, in the manner known to law.
9. As indicated herein above, the abovesaid S.T.No.1157/2010 Crl.R.P.971/17 - : 11 :-
was disposed of as per a common judgment along with S.T.No. 1158/2010. The accused had preferred appeal and thereafter revision, in respect of the matter in S.T.No.1158/2010 and the said revision is Crl.R.P.No. 528/2017. In Crl.R.P.No. 528/2017, the accused (who is the same in both the complaints) had expressed her willingness to seek the option of mediated settlement which was also welcomed by the respondent complainant. This Court has passed an order dated 8.8.2017 in Crl.R.P.No. 528/2017 (arising out of S.T.No. 1158/201), which reads as follows:
"In furtherance of the order of this Court dated 07.07.2017, the petitioner/accused has personally appeared and has appraised this Court through her learned counsel that she is willing to seek the option of mediation settlement in S.T.No.1158 of 2010 on the file of the Judicial First Class Magistrate Court, Nadapuram (which led to the present Crl.R.P.No.528 of 2017) as well as in S.T.No.1157 of 2010 (which is in relation to the suo motu revision proceedings proposed by this Court).
2. Learned counsel for the 2nd respondent complainant would submit that the complainant is not able to travel from all the way from Kozhikode to Ernakulam and that she is also interested for mediation and that both parties may be referred to the District Mediation Centre, Kozhikode. This suggestion is acceptable to the petitioner's counsel as well.
3. Accordingly, it is ordered that the petitioner accused and the respondent complainant will personally appear at 10.15 a.m. on 18.08.2017 before the co-ordinator of the District Mediation Centre, Kozhikode, upon which, the parties shall be referred to a mediator. The mediator will commence the mediation process on the same day and will attempt to complete the same within 5 to 6 weeks. If any compromise is arrived at between the parties, then the terms and conditions of the monetary settlement should be separately shown for S.T.No.1158/2010 (for which the dishonored cheque dated 05.03.2007 is for Rs.65,000/-) as well as S.T.No.1157/2010 (for which the dishonored cheque dated 12.03.2007 is for Rs.85,000/-).
This revision petition as well as the suo motu revision proceedings will be treated as part heard."
10. Now the Mediation Centre, Kozhikode, has intimated the Crl.R.P.971/17 - : 12 :-
Registry of this Court as per letter dated 22.8.2017, which also contains a letter dated 21.8.2017 of the mediator that the mediation process is going on and that there is every chance of settlement and that the mediator requires at least two months' time for finalising the settlement. This Court is passing a separate order in Crl.R.P.No.528/2017 granting sufficient time to the mediator for finalising the mediation process. Sri.Sasthamangalam S.Ajithkumr, learned counsel appearing for the 1st respondent (accused) would submit on the basis of the instructions that the accused has been advised to prefer a criminal appeal before the Sessions Court concerned to impugn the judgment dated 27.6.2011 in S.T.No. 1157/2010 and that she would prefer such an appeal along with a delay condonation application without much delay and that advance copy of the said criminal appeal and condonation application to be filed before the Sessions Court concerned will be served on the counsel appearing for the complainant before the appellate court. Sri.Arun Ajay Sankar, learned counsel appearing for the 2nd respondent (complainant) would submit that the complainant will be instructed to ensure that in case notice on the abovesaid appeal and delay condonation application are served on the counsel for the complainant appearing in the appellate court, then the said counsel will be requested to take notice on behalf of the complainant in those proceedings in order to save further time. Therefore, Sri.Sasthamangalam S.Ajithkumar, learned counsel appearing Crl.R.P.971/17 - : 13 :-
for the accused would further submit that in case the mediation process pending before the District Mediation Centre, Kozhikode, is successful, then subject to the terms and conditions thereof, the accused would be advised to seek compounding of the offence by filing joint compromise application between the parties, in such appeal to be filed before the Sessions Court. Regarding these aspects, it is for the parties concerned (accused and the complainant) to proceed with the matter, as per law. However, it is ordered that in the peculiar facts and circumstances of this case, the execution of the impugned sentence as per the judgment dated 27.6.2011 in S.T.No. 1157/2010 shall be kept in abeyance until 31.12.2017 in order to enable the accused to prosecute her remedies in the manner known to law.
The Registry will forward copies of this order to the trial court concerned and to the Sessions Court, Kozhikode, for necessary information.
With these observations and directions, the abovesaid Criminal Revision Petition will stand finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
///True Copy///
P.S. to Judge
Crl.R.P.971/17 - : 14 :-