9911796707
TMI Blog2021 (6) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that the parties have settled the dispute amicably,in view of this court the compounding of the offence is required to be permitted - Application allowed. Generally the powers available under Section 482 of the Code would not have been exercised when a statutory remedy under the law is available, however considering the peculiar set of facts and circumstances it would not be in the interest of justice to relegate the parties to appellate court. Additionally when both the parties have invoked the jurisdiction of this Court and there is no bar on exercise of powers and the inherent powers of this court can always be invoked for imparting justice and bringing a quietus to the issue between the parties and hence, the present application is entertained. - R/CRIMINAL MISC. APPLICATION NO. 18712 of 2020 - - - Dated:- 6-5-2021 - HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI DR VENUGOPAL PATEL(7411)FOR THE APPLICANT(S)NO. 1 MR DIGANTM POPAT (5385)FOR THE RESPONDENT(S)NO. 2 MS NISHATH AKORE,APP FOR THE RESPONDENT(S)NO. 1 ORDER 1. The present application is filed by the applicant under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patel appearing for the applicant has submitted that the dispute and grievances have been amicably resolved between the parties and in connection whereof, settlement affidavit dated 09.03.2020 has also been executed and the same has also been produced before the High Court in Criminal Misc. Application (stamp) No.8069 of 2020. Thus, he submitted that the impugned judgment and order and further proceedings in that regard, may be quashed and set aside. 4. Learned advocate Shri Digant Popat appearing for Respondent No.2 supports the submission made by Ld advocate for the applicant and states that the dispute between the parties is resolved amicably.Respondent no.2 has received the outstanding cheque amount from the applicant and the Respondent No.2 does not wish to continue with the proceedings initiated against the applicant and the same be quashed since the dispute does not survive anymore. 5. Learned advocate Dr.Venugopal Patel has placed reliance on the judgments of the Court in the case of NarottambhaiKarshandas Nanda V/s. State of Gujarat, 2011 (0) GLHEL-HC-224758, in the case of KirpalsinghPratapsingh Ori V/s. Salvinder Kaur HardisinghLobana Anr., 2004 (2) GLH 544, judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akore has submitted that since the applicant-accused may avail efficacious remedy by way of filing appeal under Section 141 of the Negotiable Instruments Act, 1881, the impugned FIR may not be quashed. She has submitted that appropriate cost may impose since the applicant- accused has approached this Court after the order of conclusion was passed. Under the circumstances, let the matter be kept for orders. 10. This Court in the case of KirpalsinghPratapsingh V/s. Salvinder Kaur HadisinghLobana, 2004 (2) GLH 544 made the following observation : 23. Section 147 of NI Act begins with a non obstante clause and such clause is being used in a provision to communicate that the provision shall prevail despite anything to the contrary in any other or different legal provisions. So, in light of the compass provided, a dispute in the nature of complaint under Section 138 of NI Act, can be settied by way of compromise irrespective of any other legislation including Cr.P.C. in general and Section 320 (1)(2) OR (6) of the Cr.P.C. in particular. The scheme of Section 320 Cr.P.C. deals mainly with procedural aspects; but it simultaneously crystallizes certain enforceable rights and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause made by the Apex Court in the case of Makbul Singh v. State of Punjab reported in AIR 1999 SC 1131 are also relevant for our purpose; wherein the Apex Court has stated that non obstante clause in Section 32(a) of the NDPS Act has overriding effect on powers of suspension, commutation and remission provided under the Cr.P.C. 24(i). The expression special law means a provision of law which is not applicable generally but which applies to a particular or specific subject or class of subjects. Section 41 of Indian Penal Code stands on the same footing and defines the phrase 'special law Sometimes, a particular act or part of a procedural law may be considered as general and can be given effect to with reference to some act. But it may be special with reference to other act. 24(ii). In this connection I would like to quote the well accepted proposition of law emerging from various observations made by the Apex Court in different decisions as a gist of the principle and it can be summarised that, When a special law or a statute is applicable to a particular subject, then the same would prevail over a general law with regard to the very subject, is the accepted principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of fine imposed by the court and/or under an obligation to pay the the amount of compensation if awarded, as per the scheme of NI Act, can compound the matter. The complainant, i.e. person or persons affected can pray to the court that the accused, on compounding of the offence may be released by invoking jurisdiction of this Court under Section 482 Cr.P.C. read with Article 226 of the Constitution of India. 29. The court is aware about one accepted principle of law and the principle governing the concept of judicial restrain that unless the court is asked to answer a particular point, normally the court should not venture to deal with the points which are not raised by any of the parties. But when the court was dealing with the said two Special Criminal Revision Applications certain queries were put during hearing to the learned counsel appearing for the parties and the points discussed were a matter of discussion in reference to sub-section 6 of Section 320 Cr.P.C., Section 147 of NI Act and the jurisdiction of this Court under Section 482 of Cr.P.C read with Article 226 of the Constitution of India. The court is also aware of other principle of law that when a thing is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt or by the parties but only with the leave of the court. Sub-section (1) of Section 320 enumerates the offences which are compoundable without the leave of the court, while sub-section (2) of the said section specifies the offences which are coms: undable with the leave of the court. 12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 CrPC which states that No offence shall be compounded except as provided by this section , A bare reading of this provision would lead us to the inference that offences punishable under Jaws other than the Penal Code also cannot be compounded, However, since Section 147 was inserted by way of an amendment to a special Jaw, the same will override the effect of Section 320(9) CrPC, especially keeping in mind that Section 147 carries a non obstante clause. 18. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority. 23. We are also in agreement with the Learned Attorney General's suggestions for controlling the filing of multiple complaints that are relatable to the same transaction. It was submitted that complaints are being increasingly filed in multiple jurisdictions in a vexatious manner which causes tremendous harassment and prejudice to the drawers of the cheque. For instance, in the same transaction pertaining to a loan taken on an installment basis to be repaid in equated monthly installments, several cheques are taken which are dated for each monthly installment and upon the dishonor of each of such cheques, different complaints are being filed in different courts which may also have jurisdiction in relation to the complaint. In light of this submission, we direct that it should be mandatory for the complainant to disclose that no other complaint has been fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Electronic Trade Technology Development Corporation Ltd.v. Indian Technologists and Engineers, 1996) 2 SCC -739, the object of bringing Section 138 in the statute book is to inculcate faith in the efficacy of banking operation and credibility in transacting business on negotiable instruments. The provision is intended to prevent dishonesty on the party of the drawer of negotiable instruments in issuing cheques without Sufficient funds of with a view to inducing the Payee or holder jn due course to act upon it. It thus seeks to promote the efficacy of banking Operations and ensures credibility in transacting business through cheques. In such' matters, therefore, normally compounding of offences should not be denied. Presumably, Parliament also realized this aspect and inserted Section 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions )Act, 2002 (Act 55 of 2002. 18. Taking into consideration even the said provision(Section 147) and the primary object underlying Section 138, in our judgment, there is no reason to refuse compromise between the parties. We therefore dispose of the appeal on the basis of the settlement arrived at between the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Miscellaneous Provisions )Act, 2002 (Act 55 of 2002. 18. Taking into consideration even the said provision(Section 147) and the primary object underlying Section 138, in our judgment, there is no reason to refuse compromise between the parties. We therefore dispose of the appeal on the basis of the settlement arrived at between the appellant and the respondent. 8.Applying the ratio of the aforesaid decision of the Apex Court to the facts of the present case, I ma of the opinion that this Revision Application is required to be allowed and the parties be permitted to compound the offence. 9. In the result, the Revision Application is allowed. The judgment and order of conviction and sentence dated 16.05.2011 passed in Criminal Case No.1787 of 2010 by the learned Metropolitan Magistrate (NI Act), Court No.5, Ahmedabad, as passed in Criminal Appeal No.2685 of 2011 by the learned Additional Sessions Judge, Ahmedabad City, dismissing the same are hereby quashed and set aside. The amount of ₹ 25,000/- deposited by the applicant in the Registry of this Court be refunded to the respondent No.1 on proper identification. The parties are permitted to compound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15.1. On 31.03.2021, the respondent no.2 remained present through video conference and stated that the parties have arrived at a settlement and the entire amount agreed between the parties is received by respondent no.2 and that he has no objection if the conviction of the applicant with respect to the present offence is quashed. He has further stated that there was no coercion, threat or force in entering into the compromise. He has entered into compromise with the applicant by free will. 16. Applying the ratio of various decisions by this Court and the Apex Court as well as in view of the guidelines as laid down in the case of Damodar S. Prabhu (Supra) as also considering the object of Section 138 of the NI Act, which is mainly to inculcate faith in the efficacy of banking operations and credibility of transacting business through cheque as also taking into account the provisions of Section 147 which states that every offence punishable under this Act shall be compoundable. Further, it is mainly a transaction between the private parties where the State is not affected. 16.1. This Court is aware that the ideal remedy for the parties ought to have been to prefer an appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
