9911796707
TMI Blog2022 (5) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... g therein that the accused borrowed sum of Rs. 1,90,000/- from him and with a view to discharge his liability, issued cheque for a sum of Rs. 1,90,000/- (Ext.PW1/A), but fact remains that aforesaid cheque on its presentation, was dishonoured. Since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings before the competent Court of law under Section 138 of the Act. 3. Learned trial Court on the basis of material adduced on record by the respective parties held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, vide judgment/order dated 24.6.2013/16.7.2013, convicted and sentenced him to undergo six months' simple imprisonment and pay compensation to the tune of Rs. 2,25,000/- to the complainant. 4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, accused preferred an appeal in the court of learned Additional Sessions Judge-II Shimla, District Shimla, H.P., which also came to be dismissed vide judgment dated 27.2.2015. Though aforesaid judgment was laid challenge i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso invited attention of this Court to judgment dated 1.12.2017, passed by this court in Case titled Gulab Singh v. Vidya Sagar Sharma, Latest HLJ 2017(HP) Suppl. 753, wherein this Court recalled its judgment passed in criminal revision in light of provisions contained under Section 147 of the Act, which permits compounding of the offence under Section 138 of the Act. 7. Having heard the learned counsel for the parties and perused the judgments pressed into service by the learned counsel, this Court finds that issue raised in the instant petition stands duly adjudicated by this Court in Geeta Devi's Case (Supra). It would be apt to take note of paras 11 to 15 passed in case titled Geeta Devi' s case supra: "11. Having heard learned counsel for the parties and perused the judgment dated 1.12.2017 passed by this Court in Gulab Singh case (supra), this Court finds that issue which arises in the case at hand stands duly adjudicated by this Court. It would be profitable to reproduce para Nos. 9 to 15 of the aforesaid judgment herein:- "9. Mr. Manohar Lal Sharma, learned counsel representing the petitioner, has invited attention of this Court to the judgment passed by Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount in dispute has been paid by the accused-petitioner to the respondent-complainant and the principles of law laid down in the aforesaid decisions, I find it a fit case in the criminal misc. application is to be allowed and the order dated 6.10.2016 is to be recalled. Consequently, the criminal misc. application is allowed and the order dated 6.10.2016 is recalled and all the orders whereby the accused-petitioner was convicted and sentenced for the offence under Section 138 of N.I. Act are set aside and as a consequence thereof he is acquitted therefrom." 10. Reliance is also placed upon the judgment passed by Hon'ble Gujarat High Court, wherein similar application came to be filed for recalling the judgment passed by the Hon'ble High Court of Gujarat. In the aforesaid judgment, Hon'ble Gujarat High Court, has reiterated that judgment passed by the High Court 8 affirming the judgment of conviction recorded under Section 138 of the Act, can be recalled in view of the specific provisions contained in Section 147 of the Act, which provides for compounding of offence allegedly committed under Section 138 of the Act. 11. The Hon'ble Apex Court in K. Subramanian Vs. R.Rajathi; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Revision No.394 of 2015, wherein conviction/ sentence awarded by the Court below came to be upheld. In the case at hand, Special Leave to Appeal (Crl.) filed by the applicant/petitioner was dismissed as withdrawn vide order dated 18.08.2017. Subsequent to passing of aforesaid order by Hon'ble Apex Court, petitioner/applicant has approached this Court, praying therein for modification/recalling of its judgment dated 10.3.2017, passed in Criminal Revision No.394 of 2015 on the ground that parties have amicably settled the matter and entire amount stands paid to the respondent/complainant in terms of judgment passed by the learned trial Court. Learned counsel representing the petitioner/applicant, contended that once the Supreme Court permits withdrawal of a Special Leave Petition without recording reasons, it is as if no appeal was ever filed or entertained, since in the absence of grant of special leave, there is no appeal in existence. Learned counsel further contended that where a Special Leave Petition is permitted to be withdrawn and equally when it is dismissed in limine without recording reasons, the High Court judgment neither merges into any proceedings before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not as if the Supreme Court is not known to, while dismissing the SLP as withdrawn, grant such liberty. The order thus has to be read as it is i.e., of dismissal of SLP as withdrawn. 12. Rule 9 of Order XV titled "Petitions Generally" of the Supreme Court Rules, 2013 provides for withdrawal of the petition. Once a proceeding / petition is permitted to be withdrawn, the effect of such withdrawal is as if, it had not been preferred. It is a different matter that the Rules may prohibit the petitioner who so withdraws his petition from refiling the same or even in the absence of such Rules, such refiling may be treated as an abuse of the process or by way of re-litigation. But in law a dismissal of the petition as withdrawn cannot be at par with the dismissal of the petition. 13. Neither counsel has however addressed us on this aspect and has proceeded on the premise as if dismissal as withdrawn is the same as dismissal of the petition. 14. As far as the effects, if any, of dismissal in limine of a SLP on a subsequent review petition before the High Court is concerned, which arise for consideration are firstly whether, Abbai Maligai Partnership Firm and Kunhayammed (supra), both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med (supra), though of a Bench of the same strength as Abbai Maligai Partnership Firm (supra), did not read Abbai Maligai Partnership Firm (supra) as laying down anything to the contrary than what was held in Kunhayammed (supra). The Supreme Court having expressly held so, it is not open today to the respondent UOI to contend or for us to hold that there is a conflict in the two. 17. We now proceed to analyze whether Sunil Kumar (supra) carves out any different factual scenario in which Abbai Maligai Partnership Firm and Kunhayammed (supra) operate. 18. Supreme Court in Sunil Kumar (supra) was concerned with a petitioner who was held to be a black-marketer exploiting helplessness of the poor people of the society and capable of engaging lawyers and found to be abusing the process of the Court and wanting to use the Courts as a safe haven. The subject matter of Sunil Kumar (supra) was a transaction under Section 7 of the Essential Commodities Act, 1955. The petitioner therein was found to have approached the High Court for modifying the order of his conviction after the SLP against the order of conviction had been dismissed and had again preferred the SLP to the Supreme Court ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is dismissed though by a non- speaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court. 27.A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compound the offence while exercising power under Section 147 of the Act or not. 13. 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. In this regard reliance is placed upon the judgment rendered by Hon'ble Apex Court in Damodar S. Prabhu versus Sayed Babalal H., (2010) 5 Supreme Court Cases 663, which otherwise lays down the law that court can proceed to compound the offence, if any, under section 138 of the Act in the case where accused already stands convicted. Section 362 Cr.P.C, provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "whether this court after affirming the judgment of conviction and order of sentence recorded by the court can accept the prayer made by the accused to compound the offence while exercising power under Section 147 of the Act or not." 9. This court while placing reliance upon judgment rendered by the Hon'ble Apex Court in case titled Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, has held that though Section 362 Cr.P.C provides that save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error, but aforesaid 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. Otherwise also, Section 147 of the Act empowers this court to compound every offence punishable under the Act notwithstanding anything contained in the Code of Criminal Procedure. 10. High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uided by following twin objectives, as laid down in the case of Narinder Singh vs. State of Punjab (2014) 6 SCC 466: i. Prevent abuse of the process of the court. ii. Secure the ends of justice. iii. To give effect to an order under the Code. 18. In the instant case, it is true that this Court had dismissed the criminal revision and upheld the conviction and sentence passed by the court below but it cannot be lost sight of the fact that this Court has the power to intervene in exercise of the powers vested under section 482 Cr.P.C. only with a view to do the substantial justice or to avoid miscarriage and the spirit of the compromise arrived at between the parties. This is perfectly justified and legal too. 19. I have considered the judgments cited by the learned counsel for the petitioner as well as by the learned Counsel for the State and other decisions of the Hon'ble Apex Court and I do not think it necessary to enlist those decisions which are taken into consideration for the purpose of the present proceedings. 20. In the instant case, the petitioner is invoking the inherent power as vested under section 482 Cr.P.C. after the dismissal of the revision petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned AGA would not come in the way so far as the relief prayed in this petition. 23. I am not in agreement that when the adjudication of a criminal offence has reached to the state of revisional level, there cannot be any compromise without permission of the court in all case including the offence punishable under 'N.I. Act' or the offence mentioned in Table-1 (one) can be compounded only if High Court or Court of Sessions grants permission for such purpose. The Court presently, concerned with an offence punishable under 'N.I. Act'. 24. 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 I can refer to the following extracts from an academic commentary [Cited from : K.N.C. Pillai, R.V. Kelkar's Criminal Procedure, 5th Edition : "17.2 - compounding of offences - A crime is essentially a wrong against the society and the State. Therefore, any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. However, where the offences are essentially of a privat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permissible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. This view will, in our opinion, give proper effect to the non-obstante clause in clause (b) with due regard to its other provision that the letting value should be "reasonable" 26. 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. In this connection I would like to quote the well accepted proposition of law emerging from various observations made by the Hon'ble Apex Court in different decisions as a gist of the principle and it can be summarised as under: "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 in the field of interpretation of statute." 27. In refe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
