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TMI Blog2021 (12) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... plying the ratio decidendi of Damodar S.Prabhu and the guidelines framed therein, on the strength of compromise arrived at between petitioner and the complainant, It is felt persuaded to exercise revisional jurisdiction for doing real and substantial justice in the matter for the administration of which alone the Courts exist. Compounding of offence under Section 138 of the Act, obviously, entails acquittal of the petitioner - the instant revision petition is allowed. - S.B. Criminal Revision Petition No. 1013/2021 - - - Dated:- 16-12-2021 - Hon'ble Mr. Justice Devendra Kachhawaha For the Petitioner(s) : Mr. N.K. Gurjar For the Respondent(s) : Mr. Mukhtiyaar Khan, P.P., Mr. Ashok Khilery-Complainant ORDER Accused-petitioner has preferred this revision petition under Section 397/401 Cr.P.C. to challenge judgment dated 11.02.2020, passed by Sessions Judge, Bhilwara (for short, learned appellate Court ), whereby learned appellate Court has confirmed judgment dated 27.04.2019, rendered by Special Judicial Magistrate (N.I. Act Cases) No.1, Bhilwara (for short, learned trial Court ). The learned trial Court, by its verdict dated 27.04.2019, indicted accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is true that the offence is compoundable but a pivotal question, which has emerged for consideration, is whether revisional powers can be exercised by this Court to compound the offence under Section 138 of the Act after conviction of the petitioner by appellate Court. The legal position in this behalf was fluid until the judgment rendered in Damodar S. Prabhu Vs. Sayed Babalal H. [(2010) 5 SCC 663] by the Supreme Court. In the said verdict, Supreme Court has examined the provisions of Section 138 and 147 of the Act threadbare and observed that compensatory aspect of the remedy should be given priority over the punitive aspect. While discussing object of Section 138 of the Act, the Court held: However, there are some larger issues which can be appropriately addressed in the context of the present case. It may be recalled that Chapter XVII comprising Section 138 to 142 was inserted into the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988). The object of bringing Section 138 into the statute was to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded 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. ... 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. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary [Cited from: K.N.C. Pillai, R.V. Kelkar's Criminal Procedure, Fifth Edn. (Lucknow: Eastern Book Company, 2008) at p. 444]: 17.2 Compounding of offences,- A crime is essentially a wrong against the society and the State. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:- (i) In the circumstances, it is proposed as follows: (a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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