Revision petitioner was an accused before the Judicial first Class Magistrate Court, Pattambi in C.C.No.13 of 1995. He was tried, convicted and sentenced by the trial court for an offence punishable under Section 392 of the Indian Penal Code (in short, “IPC”). Feeling aggrieved by that conviction, the revision petitioner challenged the judgment of the learned Magistrate in Crl.Appeal No.156 of 1996 on the file of the learned Additional Sessions Judge (Adhoc-II), Palakkad. Learned Additional Sessions Judge after considering the materials on record confirmed the conviction and sentence and the appeal was dismissed. That judgment is challenged in this revision.
2. Heard the learned counsel for the revision petitioner and the learned counsel for the additional 2nd respondent. Learned Public Prosecutor is also heard.
3. Learned counsel for the revision petitioner submitted that the parties have settled the matter subsequent to the conviction of the revision petitioner. Along with Crl.M.A.No.4581 of 2014, an affidavit sworn to by the defacto complainant is filed. It is mentioned by the defacto complainant in the said affidavit that an offence under Sec.392 IPC was not made out in this case and at the most an offence under Sec.379 IPC alone was revealed from the evidence. However, that averment in the affidavit cannot be accepted in view of the concurrent findings of two courts. There is no valid reason to accept that contention of the defacto complainant. Learned counsel for the revision petitioner contended that in view of the compromise between the defacto complainant and the revision petitioner, this Court may show some leniency in the matter of sentence. Reliance is placed on two decisions of the Supreme Court in Jetha Ram and others v. State of Rajasthan ((2006) 9 SCC 255 and Badrilal v. State of M.P. ((2005) 7 SCC 55) to contend a proposition that in a non-compoundable offence case, the compromise cannot be recorded as such. But, while awarding the sentence, the fact of compromise can be taken into consideration. In this case, the court below convicted the appellant for rigorous imprisonment for a period of two years. That was confirmed by the learned Additional Sessions Judge also. Learned counsel for the petitioner submitted on instruction that the revision petitioner had undergone pre-trial detention for a period of 10 days. The records revealed that he was arrested on 18.08.1994 and released on bail on 27.08.1994. Considering the entire facts and circumstances, I find that the conviction of the revision petitioner cannot be set aside on the basis of the compromise. However, reckoning the fact that the defacto complainant and the revision petitioner settled the matter out of court, the sentence is reduced in the following manner:
The revision petitioner shall undergo imprisonment for seven days for the said offence. As he had already undergone pre-trial detention for such a period, he shall be released forthwith, if he is not wanted in any other case. The sentence of fine imposed by the court below is confirmed. Learned counsel submitted that since the sentence of imprisonment alone was suspended, the fine imposed must be paid by the revision petitioner. If the revision petitioner has not paid the fine amount, he shall pay the same within 30 days from today before the trial court, failing which, he shall undergo default imprisonment for a period of ten days.
Crl.R.P. is partly allowed and Crl.M.A. is closed.
A. HARIPRASAD, JUDGE.
cks A.HARIPRASAD, J.
Crl.R.P.No.319 of 2003 & Crl.M.A.No.4581 of 2014 ORDER 15th October, 2014