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TMI Blog2023 (4) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... record are that the respondent-complainant (hereinafter, 'complainant') instituted proceedings under S.138 of the Act against the petitioner-accused (hereinafter, 'accused') in the competent court of law, alleging therein that the accused issued cheque No. 0619716 amounting to Rs.1,27,500/- dated 31.1.2015 drawn on State Bank of India, Nair Chowk, Mandi, Himachal Pradesh for discharging lawful liability, however, the fact remains that the cheque on its presentation, was dishonoured on account of insufficient funds in the account of the accused. Since the accused despite receipt of legal notice, failed to make payment good, complainant was compelled to institute proceedings under S.138 of the Act in the competent court of law. 3. Learned trial Court, on the basis of evidence led on record by respective parties, held the accused guilty of having committed offence punishable under S.138 of the Act and convicted and sentenced him to undergo simple imprisonment for a period of six months and pay fine to the tune of Rs.1,37,500/-. Though, aforesaid judgment of conviction and order of sentence was laid challenge by way of appeal in the court of learned Sessions Judge, Mandi, in Cr. Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation is, 'whether this court can recall its judgment dated 23.11.2022 passed in Cr. Revision No. 228 of 2022, affirming judgment of conviction and order of sentence passed by learned Courts below?' 9. This Court vide judgment passed in Cr.MP No. 1197 of 2017 in Cr. Revision No. 394 of 2015 titled Gulab Singh v. Vidya Sagar Sharma, while relying upon judgment of Hon'ble Apex Court as well as other Constitutional Courts has already held that court, while exercising power under Section 147 of Act can proceed to compound offence even in those cases, where accused stands convicted. Relevant portion of the order passed by this court in order supra is reproduced as under: "8. Before acceding to aforesaid joint request having been made by learned counsel for the respective parties, moot question arise for determination of this Court is whether it has power to review/recall its own order/judgment passed in Criminal Revision No.394 of 2015, wherein judgment of conviction recorded by both the Courts below came to be upheld. 9. Mr. Manohar Lal Sharma, learned counsel representing the petitioner, has invited attention of this Court to the judgment passed by Hon'ble High Court of Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 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; (2010)15 Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Supreme Court nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 re-filing the same or even in the absence of such Rules, such re-filing 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 of thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra), 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 blackmarketer 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 against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed though by a nonspeaking 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 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calling/modification of judgment dated 10.3.2017, passed by this Court in Criminal Revision No.394 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 the learned trial court is quashed and set-aside and petitioner is acquitted of the charge framed against him. His bail bonds are discharged. Since, respondent/complainant is/was unnecessarily dragged into litigation for realization of his own money, this Court deems it fit to direct the petitioner/accused to pay an amount of Rs. 50,000/- to the respondent/complainant in addition of the amount already paid. At this stage, it may be noticed that learned counsel representing the petitioner has handed over the demand draft of Rs. 50,000/- to the complainant in the Court towards litigation charges. Needless to say, amount lying deposited with the learned trial Court shall be released forthwith in favour of the respondent/complainant on his making formal application." 10. In the case at hand, petitioner-accused has already handed over the amount ordered to be paid by the court below to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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