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TMI Blog2020 (11) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... age, thus following the Guidelines, this Court deems it appropriate to permit the compounding of offence subject to payment of cost at the rate of 15% of the cheque amount to be paid to the complainant. Thus, in the aforesaid terms it is directed that if the accused/revisionst pays a cost of 15% of the cheque amount to the complainant within a period of 15 days from the date of passing of this order, this Court permits the compounding of offence to the parties. If such an amount towards the cost is being paid to the complainant then the judgment and conviction dated 16.04.2018 passed by the trial Court duly affirmed by the appellate court is set aside. The revisionist is acquitted from all the charges. He is in custody, he be released forthwith and set free, if not requires in any other case. The application for suspension of sentence of the revisionist has rendered infructuous - Application disposed off. - Cr. R. No. 2113/2020 - - - Dated:- 4-11-2020 - VISHAL MISHRA , J. Shri Rajnish Sharma , counsel for the petitioner Shri Neeraj Dhamanya , counsel for the respondent ORDER In the wake of unprecedented and uncertain situation due to outbreak of the Novel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the petitioner has been convicted under Section 138 of the Negotiable Instruments Act and awarded a sentence to undergo rigorous imprisonment for a period of 4 months with fine of ₹ 65,000/- under Section 357(3) of Cr.P.C. and in lieu of deposition of the fine amount further three months SI. It is argued that the complainant (respondent herein) has filed a private complaint under Section 138 of the N.I. Act against the petitioner with the pleading that a loan of ₹ 53,000/- was taken from the complainant on 2.5.2014 pointing out his personal requirements with an assurance that the same will be returned as soon as possible and on the demand being made the petitioner has issued cheque in favour of the respondent. The cheque was dishonoured due to insufficient funds in the bank account. Thereafter, the proceedings were drawn under Section 138 of the N.I. Act and was registered as Criminal Case No.1886/2014. After recording of evidence the trial Court has convicted the petitioner vide its judgment of conviction dated 23.11.2015 and awarded sentence of 4 months rigorous imprisonment with fine of ₹ 65,000/-. An appeal was preferred and vide the impugned order the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the aforesaid effect in the present revision. It is pointed out that the entire amount of ₹ 65,000/- has already been paid in cash to the complainant. The Hon'ble Supreme Court in the case of K.M.Ibrahim (supra) has held as under:- 7.Mr. Rohtagi submitted that the said position had been accepted by this Court in various decisions, such as in O.P. Dholakia vs. State of Haryana, wherein it was held that since the petitioner had already entered into a compromise with the complainant and the complainant had appeared through counsel and stated that the entire money had been received by him and he had no objection if the conviction already recorded under Section 138 of the Negotiable Instruments Act is set aside, the Hon'ble Judges thought it appropriate to grant permission, in the peculiar facts and circumstances of the case, to compound the offence. While doing so, this Court also indicated that necessarily the conviction and sentence under Section 138 of the Act stood annulled. 8. The said view has been consistently followed in the case of (1) Anil Kumar Haritwal Anr. vs. Alka Gupta (2) B.C. Seshadri v. B.N. Suryanarayana Rao decided by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court is further empowered under Article 142 of the Constitution to pass appropriate orders in line with Sub- Section (8) of Section 320 Cr.P.C. in an application under Section 147 of the aforesaid Act, in order to do justice to the parties. 13. As far as the non-obstante clause included in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of offences. The various decisions cited by Mr. Rohtagi on this issue does not add to the above position. 14.It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution. 15. Since the parties have settled their disputes, in keeping with the spirit of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner had already entered into a compromise with the complainant, the bench had rejected the State's argument that this Court need not interfere with the conviction and sentence since it was open to the parties to enter into a compromise at an earlier stage and that they had not done so. The bench had observed: 3.... Taking into consideration the nature of the offence in question and the fact that the complainant and the accused have already entered into a compromise, we think it appropriate to grant permission in the peculiar facts and circumstances of the present case, to compound. Similar reliefs were granted in orders reported as Sivasankaran v. State of Kerala, Kishore Kumar v. J.K. Corpn. Ltd. and Sailesh Shyam Parsekar v. Baban among other cases. 9.As mentioned above, the Negotiable Instruments Act, 1881 was amended by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 which inserted a specific provision, i.e. Section 147 to make the offences under the Act compoundable'. We can refer to the following extract from the Statement of Objects and Reasons attached to the 2002 amendment which is self- explanatory:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. (c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. Thus, from the perusal of the aforesaid dictum of the Hon'ble Supreme Court in the aforesaid cases it is apparently clear that cases under the Negotiable Instruments Act can be compounded at any stage. Considering the aforesaid preposition of law and also the Guidelines issued by the Hon'ble Supreme Court in the aforesaid case, this Court deems it appropriate to permit the parties to compound the offence on the basis of the compromise entered into between the parties. However, in terms of the Guidelines framed by the Hon'ble Supreme Court as the accused/revisionist has not appeared before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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