2023 (3) TMI 1329 - HC - Indian Laws

Dishonour of Cheque - insufficiency of funds - compounding of offence alleged to have been committed under Section 138 of the Act - whether after upholding the judgment of conviction and order of sentence passed by learned court below, this Court can proceed to compound the offence or not? HELD THAT - This Court vide judgment passed in GULAB SINGH VERSUS VIDYA SAGAR SHARMA 2017 (12) TMI 1837 - HIMACHAL PRADESH HIGH COURT , while relying upon judgment of Hon'ble Apex Court as well as other Constitutional Courts has already held that court, while exercising power under Section 147 of Act can proceed to compound offence even in those cases, where accused stands convicted. The Hon ble Apex Court in K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN 2009 (11) TMI 1013 - SUPREME COURT , also in similar situation ordered for compounding of offence after recording of conviction by the courts below, wherein it has been 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 - 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 Negotiable Instruments Act can be compounded after recording of conviction, hence this court while exercising power under Section 482 Cr.PC read with Section 147 of the Act, can proceed to compound the offence alleged to have been committed by the petitioner and set-aside judgment of conviction recorded by the courts below. This Court holds that present application for compounding of offence after dismissal of criminal revision petition vide judgment dated 2.8.2022, is maintainable and as such, parties are permitted to get the matter compounded in the light of the compromise arrived inter se them. Accordingly, judgment of conviction and sentence recorded by the learned trial court is quashed and set-aside and petitioner is acquitted of the charge framed against him - Application disposed off.

Summary

Issues Involved:
The issues involved in the judgment are compounding of the offence alleged under Section 138 of the Negotiable Instruments Act, the power of the court to compound the offence after upholding the judgment of conviction, and the acceptance of the compromise under the OTS Scheme.

Compounding of Offence under Section 138 of the Act:
The applicant-accused filed an application under Section 482 Cr.P.C read with Section 147 of the Negotiable Instruments Act seeking compounding of the offence under Section 138. The complainant alleged that the accused issued a cheque that was dishonored due to insufficient funds, leading to legal proceedings under Section 138 of the Act. The trial court convicted the accused, which was upheld in subsequent appeals. However, after a settlement under the OTS Scheme where the accused paid the agreed amount, the court considered the power to compound the offence even after conviction. The respondent-complainant had no objection to the compounding due to the settlement.

Power of the Court to Compound Offence after Conviction:
The court referred to previous judgments and held that it has the power to compound the offence under Section 138 of the Act even after upholding the conviction. Citing cases where courts recalled judgments to acquit accused based on settlements, the court emphasized the provisions of Section 147 of the Act allowing for compounding of offences. The court also highlighted judgments by the Gujarat High Court and the Supreme Court where offences were compounded post-conviction, emphasizing the acceptance of compromises between parties.

Acceptance of Compromise under the OTS Scheme:
Considering the settlement under the OTS Scheme and the payment made by the accused to the complainant, the court allowed the compounding of the offence. The court quashed the conviction and sentence, acquitting the petitioner of the charge. It directed the refund of the deposited amount to the petitioner and ordered the registry to remit the same with interest. The court concluded that the application for compounding after the dismissal of the criminal revision petition was maintainable, permitting the parties to settle the matter based on the compromise.

This summary provides a detailed overview of the judgment, highlighting the issues involved and the court's decisions regarding the compounding of the offence under Section 138 of the Negotiable Instruments Act.