Kerala High Court
Chalampattil Muhammed Koya vs State Of Kerala on 4 December, 2008
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3231 of 2008()
1. CHALAMPATTIL MUHAMMED KOYA, S/O. ALAVI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.SAMSUDIN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/12/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 3231 OF 2008
............................................
DATED THIS THE 4th DAY OF DECEMBER, 2008
ORDER
Revision petitioner, the first accused in C.C.92 of 2005 was convicted and sentenced for the offence under Section 420, 468 and 471 of IPC. His wife, the second accused, was acquitted by learned Magistrate. Though revision petitioner challenged the conviction before Sessions Court, Manjeri in Crl.A.76 of 2007, learned Sessions Judge confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition.
2. Revision petitioner, along with defacto complainant, who was examined as PW2, filed CrlM.A.12051 of 2008, a petition to quash the conviction, invoking the extra ordinary jurisdiction of this court, as the offences were compounded by the revision petitioner with defacto complainant and offences under 468 and 471 IPC are not compoundable under Section 320 of Code of Criminal Procedure.
3. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard.
4. Revision petitioner was convicted for the offence under CRRP 3231/2008 2 Section 420, 468 and 471 IPC. An offence under Section 420 IPC is compoundable by the person who was cheated. As the defacto complainant, PW2 has filed a joint petition along with revision petitioner stating that they have settled the dispute and he has no further grievance, permission can be granted to compound the offence under Section 420 IPC under Section 320 of Code of Criminal Procedure.
5. But offences under Section 468 and 471 IPC cannot be compounded, in view of Section 320(9). The said offences are not included in the list of compoundable offences provided under the two tables of Section 320 IPC. Though learned counsel relied on the Division Bench decision of this court in Thankamma V. State of Kerala(2006(3) KLT 846), Division Bench also did not hold that a revisional court can exercise the power to compound the offence which is not compoundable under Section 320 IPC. Though Division Bench had allowed an application filed in that revision petition to quash the proceedings, it did not provide that if a non compoundable offence is compounded, the conviction and sentence is to be quashed under Section 482 of Code of Criminal Procedure. Hence the prayer to quash the conviction under Section 482 of Code of Criminal Procedure canot be CRRP 3231/2008 3 allowed.
6. The question is whether the conviction of revision petitioner for the offence under Section 468 and 471 IPC is sustainable on the evidence. The prosecution case is that revision petitioner forged the signature of his wife, second accused, in Ext.P1 cheque and used it as a genuine cheque issued by first accused and thereby committed the offences under Section 468 and 471 IPC. Section 468 provides that whoever commits forgery intending that the forged document shall be used for the purpose of cheating shall be punishable for the sentence provided therein. Section 463 defines forgery. Under Section 463, whoever makes any false document with intend to cause damage or injury to the public or any person or to support any claim or title or to cause any person to part with property or to enter into an express or implied contract or with intend to commit fraud or that fraud may be commited, commits forgery. Section 464 defines making a false document. Under the section, a person is said to make false document, firstly who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document or makes or transmits any electronic record or part of any electronic record or affixes any CRRP 3231/2008 4 digital signature on any electronic record or makes any mark denoting the execution of a document or the authenticity of the digital signature with the intention of causing it to be believed that such document or part of the document was made, signed, sealed, executed, transmitted or affixed by or by authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed or secondly without lawful authority dishonestly or fraudulently by cancellation or otherwise alters a document after it has been made, executed or affixed and thirdly who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document. Therefore in order to convict the petitioner for the offences under Section 468 IPC, there should be evidence to prove that revision petitioner, with the intention to use it for the purpose of cheating, committed forgery. What is to be proved is that Ext.P1 cheque was forged by revision petitioner. It is to be proved that the signature of second accused in Ext.P1 was forged by revision petitioner. There is no acceptable evidence to establish that the signature seen in Ext.P1 is not that of second accused but was put by revision petitioner. Though learned Sessions Judge relied on the evidence of PW3 to hold that it was the signature of CRRP 3231/2008 5 revision petitioner, on going through the deposition of PW3, it is clear that PW3 only deposed that the signature is not that of the account holder, wife of revision petitioner. But there is no evidence to prove that the signature is that of revision petitioner. If that be so, there is no evidence to prove that revision petitioner committed a forgery. If so, conviction of petitioner for the offence under Section 468 or 471 IPC is not sustainable.
7. Revision petition is allowed in part. Conviction of petitioner for the offences under Section 468 and 471 IPC are set aside. Petitioner is acquitted of the said offences. Offence under Section 420 IPC is compounded.
M.SASIDHARAN NAMBIAR, JUDGE lgk/-