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TMI Blog2022 (11) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of the case, as emerge from the record, are that the complainant filed complaint under Section 138 of the Act, alleging therein that on the request of accused, complainant lent Rs. 2.70 Lakh in the last week of October, 2014 but the accused failed to return the same till December, 2014 and on repeated requests of the complainant, accused issued two cheques amounting to Rs. 1,60,000/- on 23.4.2015 and another cheque for Rs. 1,10,000/- on 3.6.2015, both drawn at UCO Bank, Rohru, District Shimla. However, the fact remains that both the aforesaid cheques, on presentation, were dishonoured on account of insufficient funds in the account of the accused. Though the complainant served the accused with legal notice Ext. CW-1/H calling upon him to make good the payment within stipulated time, but the accused failed to make the payment as such, complainant was compelled to institute proceedings under S. 138 of the Act against the accused in the competent Court of law. 3. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by learned trial Court, accused preferred an appeal in the Court of learned Sessions Judge (Forest) Shimla, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Revision Petition No.1267 of 2016, to suggests that in view of amicable settlement arrived inter se the parties, this Court has power to recall its judgment in the light of the provisions contained in Section 147 of the Act, which permits compounding of the offence under Section 138 of the Act. At this stage, it would be profitable to reproduce the judgment passed by Hon'ble High Court of Rajasthan hereinbelow:- "The accused-petitioner has field this criminal misc. application under section 482 Cr.P.C read with section 147 of Negotiable Instruments Act( for short the 'Act') with a prayer to review/recall the order dated 6.10.2016 passed by this Court in SB Criminal Revision Petition No.1267/2016 in the light of compromise dated 4.11.2016 subsequently entered between the parties and as a consequences thereof to acquit the accused petitioner for the offence under Section 138 of N.I. Act. Vide order dated 6.10.2016, the aforesaid revision petition filed by the petitioner was dismissed by this Court while upholding and affirming the judgment and order of conviction and sentence passed by the trial Court as well as by the Appellate Court. It was jointly submitted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts below, wherein it has been held as under:- "6. Thereafter a compromise was entered into and the petitioner claims that he has paid Rs. 4,52,289 to the respondent. In support of this claim, the petitioner has produced an affidavit sworn by him on 1.12.2008. The petitioner has also produced an affidavit sworn by P. Kaliappan, Power of attorney holder of R. Rajathi on 1.12.2008 mentioning that he has received a sum of Rs. 4,52,289 due under the dishonoured cheques in full discharge of the value of cheques and he is not willing to prosecute the petitioner. 7. The learned counsel for the petitioner states at the Bar that the petitioner was arrested on 30.7.2008 and has undergone the sentence imposed on him by the trial Court and confirmed by the Sessions Court, the High Court as well as by this Court. The two affidavits sought to be produced by the petitioner as additional documents would indicate that indeed a compromise has taken place between the petitioner and the respondent and the respondent has accepted the compromise offered by the petitioner pursuant to which he has received a sum of Rs.4,52,289. In the affidavit filed by the respondent a prayer is made to permit th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pport of aforesaid contentions, learned counsel representing the applicant/ petitioner also invited attention of this Court to the judgment passed by the three Judges Bench of the Supreme Court in Kunhayammed Vs. State of Keral (2000) 6 SCC 359, wherein it has been held that after dismissal of SLP in limine, review petition can be filed because at the stage of dismissal of SLP, there exists no appeal in the eyes of law. 14. Before ascertaining the correctness of aforesaid submissions having been made by learned counsel representing the applicant/petitioner, it would be profitable to take note of judgment passed by Hon'ble Delhi High Court in Kanoria Industries Limited & ors. Versus Union of India & Ors on 27th February, 2017, wherein it has been held as under:- "8. We are in the factual situation of the present case concerned not with a case of dismissal in limine by a non-speaking order of an SLP preferred against the judgment of which review is sought but with dismissal as withdrawn of the SLP. Though the review petitioners, while seeking to withdraw the SLP also sought liberty to move this Court in review petition but the Supreme Court merely dismissed the SLP as withdrawn an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g been preferred before the dismissal of SLP or after the dismissal of SLP. We have studied the two judgments in this light. 15. We find that in Kunhayammed (supra) the review petition was filed after the dismissal of SLP. The Supreme Court was approached aggrieved from the order of the High Court overruling the preliminary objection as to the maintainability of the review petition on the ground of the SLP having been dismissed. Supreme Court held that where the judgment of the High Court has come up to the Supreme Court by SLP and the SLP is dismissed, the judgment of the High Court does not merge in the order of dismissal of SLP and the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it; it may be that the review Court may interfere or it may not interfere depending upon the law and principles applicable to interference in review; but the High Court, if it exercises a power of review or deals with the review application on merits, cannot be said to be wrong in exercising statutory jurisdiction or power vested in it. It was expressly held that review can be filed even after SLP is dismissed and as also before special leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Procedure, 1973 puts a complete embargo on the Criminal Court to reconsider after the delivery of judgment as the Court becomes functus officio. In this background when the petitioner relied on Kunhayammed (supra), it was observed that Kunhayammed (supra) has been explained in various subsequent judgments as holding that review petition filed before the High Court after approaching the Supreme Court amounts to abuse of the process of the Court. Reference in this regard was made to Meghmala (supra). However, after holding so, it was further held that the ratio of Kunhayammed (supra) has no application to Sunil Kumar (supra) as Kunhayammed (supra) was dealing with civil cases. 19. We have already noticed above that in Kunhayammed (supra) the review petition was filed after the order of dismissal of the SLP. 20. What we find is that the observations, of preferring review petition after the dismissal of SLP amounting to abuse of the process of the Court, in Abbai Maligai Partnership Firm (supra) as well as in Sunil Kumar (supra) are on a factual finding of the petitioners therein abusing the process of the Court and not on the maintainability of the review petition. Certainly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused to the respondent-complainant, this Court while exercising power under Section 147 of the Act can proceed to compound the offence.
8. Consequently in view of the detailed discussion made hereinabove as well as law taken into consideration, this court finds no impediment in accepting the prayer made on behalf of the petitioneraccused through instant petition for compounding of the offence and same is allowed. Order dated 15.03.2022, passed in Cr. Revision No. 43 of 2021, is recalled. Matter is ordered to be compounded inter se parties. Impugned judgments of conviction and order of sentence passed by both the learned Courts below are quashed and set aside. Accused is acquitted of the offence punishable under Section 138 of the Act.
9. Learned trial Court is directed to release sum of Rs. 67000/- deposited with it in favour of the petitioner-accused, by remitting the same in his saving account, details whereof shall be furnished by learned counsel for the respondent- complaint within a period of two weeks.
10. The petition is disposed of along with pending applications, if any. Application stands disposed of in the aforesaid terms. X X X X Extracts X X X X X X X X Extracts X X X X
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