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2021 (12) TMI 1342 - HC - Indian LawsDishonor of Cheque - applicability of doctrine of merger - amicable settlement of the dispute - compounding of offences - Section 147 of NI Act - power to review/recall own order/judgment - HELD THAT - In Gulab Singh case 2017 (12) TMI 1837 - HIMACHAL PRADESH HIGH COURT , this Court finds that issue which arises in the case at hand stands duly adjudicated by this Court - it was held in the case that doctrine of merger does not apply in the case of dismissal of SLP. In the case at hand, SLP having been filed by the petitioner/applicant herein came to be dismissed in limini by nonspeaking order and as such, does not result in the merger of impugned order with the order passed by the Hon ble Supreme Court. Whether this court after affirming the judgment of conviction and order of sentence recorded by court below can accept the prayer made on behalf of the accused to compound the offence while exercising power under Section 147 of the Act or not? - HELD THAT - Bare perusal of Section 147 of the Act, reveals that notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), every offence punishable under this Act, shall be compoundable. Section 147 of the Act is in the nature of an enabling provision which provides for the compounding of offence prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub section (a) of Section 320 of the Code of Criminal Procedure, which otherwise state that no offence shall be compounded except as provided by this section , since section 147 was inserted by way of an amendment to a special law, the same will override the effect of sub section (a) of section 320 of the Code of Criminal procedure. As per provisions of law judgment/order once singed cannot be altered or reviewed except to correct the clerical or arithmetical error, but expression used in the aforesaid provision of law i.e. save as otherwise provided by this code or by any other law for the time being in force , enables this Court to consider the prayer made on behalf of the accused for compounding the offence while exercising power under Section 147 of the Act. As has been observed hereinabove, section 147 empowers court to compound every offence punishable under this Act notwithstanding anything contained in the code of criminal procedure. Hon ble Apex Court in Damodar S. Prabhu versus Sayed Babalal H 2010 (5) TMI 380 - SUPREME COURT has categorically held that offence punishable under Section 138 of the Act can be compounded even in those cases where accused stands already convicted. Since accused after dismissal of her SLP in limini has agreed to make the entire payment of compensation awarded by Court below to the complainant and thereafter she has approached this Court in the instant proceedings, praying therein to compound the offence in terms of Section 147 of the Act, there appears to be no impediment in compounding the offence alleged to have been committed under Section 138 of the Act while exercising power under section 147 of the Act - this Court holds that review application filed after dismissal of Special Leave Petition, praying therein for recalling/modification of judgment dated 12.9.2019, passed by this Court in Criminal Revision, is maintainable and as such, parties are permitted to get the matter compounded in the light of the compromise arrived inter se them. Application disposed off.
Issues Involved:
1. Recall of judgment dated 12.9.2019. 2. Power to review/recall its own order/judgment. 3. Compounding of the offence under Section 138 of the Negotiable Instruments Act. 4. Maintainability of the review application post dismissal of Special Leave Petition (SLP) by the Supreme Court. Issue-wise Detailed Analysis: 1. Recall of Judgment Dated 12.9.2019: The petitioner sought to recall the judgment dated 12.9.2019 passed by the High Court in Criminal Revision No.79 of 2019, which upheld the conviction and sentence dated 11.1.2018/26.2.2018 passed by the Judicial Magistrate. The petitioner argued that both parties had resolved their dispute amicably, and thus, the court should exercise its power under Section 147 of the Negotiable Instruments Act to compound the offence and acquit the petitioner. 2. Power to Review/Recall its Own Order/Judgment: The court examined whether it had the power to review or recall its own order/judgment in Criminal Revision No.79 of 2019. The petitioner’s counsel cited a previous judgment (Gulab Singh vs. Vidya Sagar Sharma) where the court had exercised its power to recall its judgment in light of Section 147, which permits the compounding of the offence under Section 138 of the Negotiable Instruments Act. The court found that the issue had been duly adjudicated in the Gulab Singh case and other precedents such as Naresh Kumar Sharma vs. State of Rajasthan and K. Subramanian vs. R. Rajathi, which supported the view that the court could recall its judgment to facilitate the compounding of the offence. 3. Compounding of the Offence under Section 138 of the Negotiable Instruments Act: Section 147 of the Negotiable Instruments Act allows for the compounding of offences under Section 138, notwithstanding the provisions of the Code of Criminal Procedure. The court noted that the compounding of the offence could be done even after the conviction has been recorded, as supported by the Supreme Court's judgments in Damodar S. Prabhu vs. Sayed Babalal H. and K. Subramanian vs. R. Rajathi. The court determined that since the petitioner had agreed to pay the entire compensation amount and the complainant had no objection to the compounding, the offence could be compounded, and the petitioner could be acquitted. 4. Maintainability of the Review Application Post Dismissal of SLP: The court addressed the maintainability of the review application filed after the dismissal of the SLP by the Supreme Court. The petitioner argued that the dismissal of the SLP in limine (without a detailed order) did not result in the merger of the High Court's order with that of the Supreme Court. The court referred to the judgments in Kunhayammed vs. State of Kerala and Kanoria Industries Limited vs. Union of India, which clarified that the dismissal of an SLP without a detailed order does not preclude the High Court from entertaining a review petition. The court concluded that the review application was maintainable and could proceed to compound the offence. Conclusion: The High Court allowed the review application, compounded the offence under Section 138 of the Negotiable Instruments Act, quashed the judgment of conviction and sentence, and acquitted the petitioner. The court also directed the petitioner to pay an additional amount of ?15,000 to the complainant for the unnecessary litigation. The amount deposited with the trial court was ordered to be released to the complainant upon a formal application.
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