9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (12) TMI 1837 - HC - Indian LawsDishonor of Cheque - parties to the lis failed to amicably settle the matter inter se the parties, despite sufficient opportunities having been afforded to them during the pendency of revision - doctrine of merger - HELD THAT - The Hon ble Apex Court in the case of K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN 2009 (11) TMI 1013 - SUPREME COURT has categorically held that in view of the provisions contained under Section 147 of the Act, read with Section 320 of Cr.P.C, compromise arrived inter se the parties, can be accepted and offence committed under Section 138 of the Act, can be ordered to be compounded. Maintainability of present review petition - doctrine of merger - HELD THAT - The doctrine of merger does not apply in the case of dismissal of special leave petition. In the case at hand, special leave to appeal having been filed by the petitioner/applicant has been dismissed as withdrawn by nonspeaking order and as such, does not result in the merger of impugned order in the order of the Hon ble Supreme Court. This Court holds that review petition filed after dismissal of Special Leave Petition, praying therein for recalling/modification of judgment dated 10.3.2017, passed by this Court in Criminal Revision No.394 of 2015, is maintainable and as such, parties are permitted to get the matter compounded in the light of the compromise arrived inter se them.
Issues Involved:
1. Recall of Judgment under Section 482 Cr.P.C. 2. Compounding of Offence under Section 138 of the Negotiable Instruments Act. 3. Power of the Court to Review/Recall its Own Order. 4. Maintainability of Review Petition after Withdrawal of Special Leave Petition. Detailed Analysis: 1. Recall of Judgment under Section 482 Cr.P.C.: The petitioner filed an application under Section 482 of the Code of Criminal Procedure to recall the judgment dated 10.03.2017, which upheld the conviction judgment dated 27.11.2014 by the Judicial Magistrate, Solan. The initial conviction was for the dishonor of a cheque under Section 138 of the Negotiable Instruments Act, with the petitioner being sentenced to three months of simple imprisonment and ordered to pay ?5,00,000 as compensation. 2. Compounding of Offence under Section 138 of the Negotiable Instruments Act: The petitioner and respondent reached an amicable settlement, with the petitioner paying the required amount as per the trial court's judgment. The respondent intended to withdraw the complaint under Section 138 of the Act. The Court considered whether it could recall its judgment in light of the provisions of Section 147 of the Act, which allows for the compounding of the offence at any stage. 3. Power of the Court to Review/Recall its Own Order: The Court examined precedents, including judgments from the Rajasthan High Court and Gujarat High Court, which supported the view that a judgment affirming a conviction under Section 138 could be recalled if the parties reached a compromise. The Supreme Court's ruling in K. Subramanian vs. R. Rajathi was also cited, where it was held that the offence could be compounded even after conviction if a compromise was reached. 4. Maintainability of Review Petition after Withdrawal of Special Leave Petition: The Court addressed the maintainability of the review petition after the petitioner had withdrawn a Special Leave Petition (SLP) before the Supreme Court. The petitioner argued that the withdrawal of the SLP did not preclude the High Court from reviewing its own judgment. The Court referred to the Supreme Court's judgment in Kunhayammed vs. State of Kerala, which clarified that the doctrine of merger does not apply when an SLP is dismissed in limine or withdrawn, thus allowing for the maintainability of a review petition. Conclusion: The Court concluded that the review petition was maintainable and allowed the parties to compound the offence in light of their settlement. The judgment of conviction and sentence was quashed, and the petitioner was acquitted. The Court also directed the petitioner to pay an additional ?50,000 to the respondent for litigation charges, which was handed over in the Court. The amount deposited with the trial court was ordered to be released to the respondent upon a formal application.
|
