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TMI Blog2023 (6) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... to be compounded. This Court finds that court while exercising power under Section 482 Cr.PC can proceed to compound the offence even after recording of the judgment of conviction and order of sentence. In the aforesaid judgment Hon ble Apex Court has categorically held that High Court having regard to the nature of offence and the fact that parties have settled their dispute and the victim has willingly consented to the nullification of criminal proceedings can quash such proceedings in exercise of its inherent powers under Section 482 Cr.PC., even if the offense are non-compoundable, however while doing so, high court is under obligation to evaluate the consequential effects of the offence beyond the body of an individual and thereafter, adopt a pragmatic approach to ensure that the felony even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system. Since in the case at hand, petitioner-accused and complainant have resolved their dispute amicably under OTS Scheme, no fruitful purpose would be served by sending the person behind bars pursuant to judgment of conviction recorded against him. In the peculiar facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t arrived inter-se parties, Mr. Sharma, states that since amount as settled under OTS scheme has been received by the respondent Bank, it shall have no objection in case petitioner is acquitted of the charges framed against him under Section 138 of the Act and judgment of conviction and order of sentence passed by the courts below against the petitioner is quashed and set-aside. 4. Though parties in the case at hand have resolved to settle their dispute amicably inter-se them as is evident from the statement given by Mr. Arvind Sharma, learned counsel for the respondent-bank, but moot question which needs to be decided in the instant proceedings is whether this Court can quash the judgments of conviction and order of sentence recorded by the courts below on the basis of amicable settlement arrived inter-se parties while exercising power under Section 482 of CRPC or not? 5. 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 Negotiab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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 dated 6.10.2016 is recalled and all the orders whereby the accused-petitioner was convicted and sentenced for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code. 7. 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 Court, praying therein for modification/recalling of its judgment dated 10.3.2017, pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication 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 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-filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment 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 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 petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the High Court. 10. Since in the case at hand, petitioner after being convicted under Section 138 of the Act has compromised the matter with the respondent complainant and in terms thereof has already paid the entire amount of compensation, prayer for compounding the offence can be accepted in terms of judgment passed by the Hon ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein it has been categorically held that court, while exercising power under Section 147 of the Act, can proceed to compound the offence even after recording of conviction by the courts below. Hon ble Apex Court in K. Subramanian v. R. Rajathi represented by P.O.A.P. Kaliappan, 2010 (15) SCC 352 , has held that in view of the provisions contained under Section 147 of the Act read with Section 320 of Cr.PC, compromise arrived can be accepted even after recording of the judgment of conviction. 11. Hon ble Apex Court in Cr.Appeal Nos. 1488 and 1489 of 2012, titled Ramgopal and Anr v. The State of Madhya Pradesh (a/w connected matter), has held that even after recording of conviction, court can proceed to compound the offence if it is satisfied that same wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to us that criminal proceedings involving nonheinous offences or where the offences are predominantly of a private nature, can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction. Handing out punishment is not the sole form of delivering justice. Societal method of applying laws evenly is always subject to lawful exceptions. It goes without saying, that the cases where compromise is struck post conviction, the High Court ought to exercise such discretion with rectitude, keeping in view the circumstances surrounding the incident, the fashion in which the compromise has been arrived at, and with due regard to the nature and seriousness of the offence, besides the conduct of the accused, before and after the incidence. The touchstone for exercising the extraordinary power under Section 482 Cr.P.C. would be to secure the ends of justice. There can be no hard and fast line constricting the power of the High Court to do substantial justice. A restrictive construction of inherent powers under Section 482 Cr.P.C. may lead to rigid or specious justice, which in the given facts and circumstances of a case, may rath ..... X X X X Extracts X X X X X X X X Extracts X X X X
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