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2007 (11) TMI 695 - HC - Indian LawsPetition u/s 482 of the Code of Criminal Procedure - Compounding after the confirmation of the conviction passed by the Magistrate Court - Dishonor of Cheque u/s 138 of the Negotiable Instrument Act (Act) - insufficiency of funds - Can the High Court reverse, alter or modify the conviction which became final by its own order passed in a revision petition, by using power u/s 482 of the Cr.P.C., which ultimately may amount to cancellation of conviction and sentence taking note of subsequent events like compounding of the case? - HELD THAT - We hold that order passed in the revision which has become final cannot be altered by invoking Section 482 even if the matter is subsequently compromised between the parties or complainant wants to withdraw the complaint. By using inherent powers, court cannot violate the written provisions of the Code. If the offence is compounded, virtue of Section 320(8) will amount to acquittal and in view of Section 326, conviction confirmed by the High Court in revision cannot be modified by a proceedings u/s 482. Once the compounding is accepted by the court, court cannot impose any sentence. Imposition of fine and ordering imprisonment in default of payment of fine, after acquitting the accused is foreign to criminal law. After acquitting a person he cannot be sentenced either with imprisonment or fine. That is not possible. Inherent jurisdiction cannot be used for sentencing a person by imposing a fine even after acquitting him, bye passing the statutory provisions. Justice can be administered only according to law. Imposition of fine is different from imposition of cost or compensation. We are of the opinion that, once the compounding is permitted, it will have the effect of an acquittal and not further imposition of fine or any type of sentence can be passed in view of Section 320(8). We are of the view that even if relief u/s 482 is a discretionary, judicial discretion cannot be exercised to discriminate between person to person. It must be applicable to all similarly situated persons. Mere delay or inconvenience in approaching Supreme Court is not a ground for invoking jurisdiction u/s 482. Thus, we overrule the decision of Sabu George's case to long as it holds that Section 482 can be invoked for accepting compounding of the offence under N.I. Act after the conviction is confirmed in a revision by the High Court. In K. Kandasamy and Anr. v. K.P.M.V.P. Chandrasekharan Supreme Court in a pending matter accepted compounding of the offence after confirmation of the same by revisional court. In Sailesh Shyam Parsekar v. Baban Alias Vishwanath S. Godge and Anr. 2005 (3) TMI 814 - SUPREME COURT . Apex Court allowed the compounding of offence u/s 138 of the N.I. Act when first application was filed in the appeal and conviction and sentence passed by the revisional court was set aside. This order will not prevent the petitioners to approach the Supreme Court in appropriate proceedings if the offence is compounded, if so advised. As found in Abdul Latheef's case (supra) the direction in the revisional order is to pay the compensation and not to deposit the compensation. Therefore if the amount is paid to the complainant there is no question of the petitioner undergoing default sentence. In this case as seen from joint petition entire amount ordered as compensation is paid. The remaining part is only the appearance of the petitioner before the Magistrate Court, and undergo imprisonment till the rising of the court. Since there was the stay of execution of judgment, petitioner is allowed to appear before the Magistrate Court to receive the remaining part of the sentence if he chooses to do so. Hence this Criminal M.C. is dismissed.
Issues Involved:
1. Whether an offence under Section 138 of the Negotiable Instruments Act can be compounded after confirmation of the conviction by the Magistrate Court, appellate court, and High Court in revision. 2. Whether an order passed by the High Court in a criminal revision petition confirming the conviction can be nullified by the High Court in a petition filed under Section 482 of Cr.P.C. noticing subsequent compromise by the parties. 3. The effect of the non obstante clause 'notwithstanding anything contained in the Code of Criminal Procedure (Cr.P.C.)' in Section 147 of the N.I. Act. Issue-Wise Detailed Analysis: 1. Compounding of Offence After Confirmation of Conviction: The court examined whether an offence under Section 138 of the N.I. Act could be compounded after the conviction has been confirmed by the highest court. It was noted that Section 147 of the N.I. Act, which allows for the compounding of offences, was introduced by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002. Before this amendment, offences under Section 138 were not compoundable as per Section 320 of the Cr.P.C. The court referred to various judgments, including Sabu George v. Home Secretary and Sankar Ramachandra Abhyankar v. Krishnaji Dattatraya Bapat, and concluded that the compounding of offences under Section 138 could be accepted even after the conviction is confirmed, provided the compounding is done during the pendency of the proceedings. 2. Nullification of High Court's Order Confirming Conviction via Section 482 Cr.P.C.: The court analyzed whether it could nullify its own order confirming a conviction through a petition under Section 482 Cr.P.C. after a subsequent compromise between the parties. The inherent powers under Section 482 are meant to prevent abuse of the process of the court and to secure the ends of justice. However, these powers cannot be used to circumvent the express bar under Section 362 of Cr.P.C., which prohibits the court from altering or reviewing its judgment once it is signed. The court referred to the Apex Court's decisions in cases like Tanveer Aquil v. State of Madhya Pradesh and State of Kerala v. M.M. Manikantan Nair, which emphasized that once a judgment is pronounced, the High Court has no jurisdiction to entertain applications for compounding the offence. Therefore, the court held that it could not nullify its own order confirming the conviction through Section 482 Cr.P.C. 3. Effect of Non Obstante Clause in Section 147 of N.I. Act: The court examined the scope of the non obstante clause in Section 147 of the N.I. Act, which states "notwithstanding anything contained in the Code of Criminal Procedure, 1973." This clause was intended to override the prohibition against compounding offences not mentioned in Section 320 of Cr.P.C. However, it does not completely exclude the application of Cr.P.C. to offences under the N.I. Act. The court agreed with the view that while the non obstante clause allows for the compounding of offences under the N.I. Act, the procedure for compounding should still follow the guidelines laid down in Section 320 of Cr.P.C. This means that the compounding can only be accepted by the court if it meets the requirements specified in Section 320. Conclusion: The court concluded that: - Offences under Section 138 of the N.I. Act can be compounded even after the conviction is confirmed, provided it is done during the pendency of the proceedings. - The High Court cannot nullify its own order confirming a conviction through a petition under Section 482 Cr.P.C. after the judgment is pronounced, as it is barred by Section 362 of Cr.P.C. - The non obstante clause in Section 147 of the N.I. Act allows for the compounding of offences under the Act, but the procedure for compounding must follow the guidelines laid down in Section 320 of Cr.P.C.
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