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TMI Blog2021 (12) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... ') instituted a complaint under S.138 of the Act in the court of Judicial Magistrate 1st Class, Court No. VI, Shimla, alleging therein that in the year 2014, he gave sum of Rs. 1,50,000/-, to the accused on her request, who with a view to discharge her liability, issued cheque bearing No.076049 dated 18.6.2014, amounting to Rs. 1,50,000/- in his favour, but fact remains that aforesaid cheque on its presentation was dishonoured on account of insufficient funds in the account of the accused. Though, complainant before instituting the complaint under Section 138 of the Act, served legal notice upon the accused calling upon her to make the payment good within the stipulated period, but since accused failed to make good the payment within the period prescribed in the legal notice, complainant was compelled to initiate proceedings under S.138 of the Act. 3. Learned trial Court vide judgment dated 8.5.2017 dismissed the complaint and acquitted the accused. Complainant, being aggrieved and dissatisfied with the aforesaid judgment of acquittal recorded by trial Court, approached this Court by way of Criminal Appeal No.295 of 2017, which came to be allowed by this Court. This Court while se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd acquit the accused after compounding the offence alleged to have been committed by her under Section 138 of the Act. 7. Mr. Vaibhav Tanwar, learned counsel representing the complainant while fairly admitting factum with regard to amicable settlement arrived interse parties, states on instructions that in case sum of Rs. 2.00 lakh awarded by court below is given to the respondent complainant, he shall have no objection in compounding the offence. 8. Mr. S.D. Sharma, learned counsel representing the petitioner/accused/applicant states that sum of Rs. 1,62,500/- has been already paid in cash, whereas remaining sum of Rs. 37,500/- lying deposited in the trial Court can be ordered to be released in favour of the respondent-complainant. 9. Before considering the aforesaid prayer made in the instant petition, question which needs to be dealt at first instance is that "whether it has power to review/recall its own order/judgment passed in Criminal Revision No.79 of 2019, wherein judgment/order of conviction and sentence recorded by both the Courts below came to be upheld by this Court". 10. Mr. S.D.Sharma, learned counsel representing the petitioner-applicant while inviting attentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent-complainant. It was further submitted that although the revision petition has been dismissed by this Court on merits vide order dated 6.10.2016, but even then that order can be recalled in the light of provisions of Section 147 of N.I.Act which permits compound of the offence under Section 138 of the Act at any stage and the accused can be acquitted. In support of their submissions, they relied upon the case of K. Subramanian Vs. R.Rajathi reported in (2010) 15 SCC 352 and order dated 7.7.2015 passed by a Single Bench of Hon'ble Gujarat High Court in S.B. Criminal Misc. Application (Recall) No.10232/2015 filed in Special Criminal Application No.3026/2014. On consideration of submissions jointly made on behalf of the respective parties and the material including the compromise entered into between the parties and the fact that the 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 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code." 12. The Hon'ble Apex Court in the aforesaid judgment has categorically 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. 13. Another question which arise for determination/ adjudication of this Court is with regard to maintainability of present review petition. Admittedly, instant review petition has been filed after withdrawal of Special Leave Petition, preferred by the applicant/ petitioner against the judgment passed by this Court in 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iberty. 10. The review petitioners obviously were of the opinion that without the aforesaid words, they did not have liberty to approach this Court by way of review and claim to have made an application to the Supreme Court in this regard but which application is stated to have been refused to be listed. 11. In our opinion, it is not for us to venture into, whether the order, notwithstanding having not provided that the review petitioners had been granted liberty, grants liberty or not. It cannot be lost sight of that it is not as if the counsel for the review petitioners, when the SLP came up before the Court, stated that the filing of SLP was misconceived and withdrew the same. The order records that it was "after some arguments" that the counsel for the review petitioners sought permission to withdraw the SLP. It is also 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter unless such a review application was preferred in the High Court before the SLP was granted. With respect to Abbai Maligai Partnership Firm (supra) it was observed that the facts and circumstances of the case persuaded the Supreme Court to form an opinion that the tenants were abusing the process of the Court by approaching the High Court and the very entertainment of review petition and then reversing the earlier order was an affront of the order of the Supreme Court. It was explained that the three Judges Bench in Abbai Maligai Partnership Firm (supra) nowhere in the course of judgment relied on the doctrine of merger for taking the view they had taken and rather a careful reading of Abbai Maligai Partnership Firm (supra) also fortified the view taken in Kunhayammed (supra). 16. It would thus be seen that Kunhayammed (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the review petitioners would also suffer the same fate. However it would not make the review not maintainable." 15. Reliance is also placed upon the judgment passed by Hon'ble Apex Court in Kunha Yammed and others versus State of Kerala and others; (2000) 6 Supreme Court Cases 359, wherein it has been held as under:- "22. We may refer to a recent decision, by Two-Judges Bench, of this Court in V.M. Salgaocar & Bros. Pvt. Ltd. Vs. Commissioner of Income Tax 2000 (3) Scale 240, holding that when a special leave petition is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal 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 Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court". 12. Bare perusal of aforesaid judgment rendered by this Court, which is squarely based upon the judgment passed by Hon'ble Apex Court, reveals that doctrine of merger does not apply in the case of dismissal of SLP. In the case at hand, SLP having been filed by the petitioner/applicant herein came to be dismissed in limini by nonspeaking order and as such, does not result in the merger of impugned order with the order passed by the Hon'ble Supreme Court. Now, next question which needs determination is whether this court after affirming the judgment of conviction and order of sentence recorded by court below can accept the prayer made on behalf of the accused to 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissal of her SLP in limini has agreed to make the entire payment of compensation awarded by Court below to the complainant and thereafter she has approached this Court in the instant proceedings, praying therein to compound the offence in terms of Section 147 of the Act, there appears to be no impediment in compounding the offence alleged to have been committed under Section 138 of the Act while exercising power under section 147 of the Act. 17. Consequently, in view of the detailed discussion made hereinabove as well as law laid down by the Hon'ble Apex Court, this Court holds that review application filed after dismissal of Special Leave Petition, praying therein for recalling/modification of judgment dated 12.9.2019, passed by this Court in Criminal Revision No.79 of 2015, 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 learned trial court is quashed and set-aside and petitioner is acquitted of the charge framed against her. Her bail bonds are discharged. Since, respondent/complainant is/was unnecessarily dragged into litigation fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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