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TMI Blog2024 (6) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... ocates For the Respondent : Mr. Hemant Kumar Thakur , Advocate , vice Mr. Anirudh Sharma ORDER Sandeep Sharma , Judge ( oral ) : By way of instant application filed under Section 482 Cr.P.C read with Section 147 of the Negotiable Instruments Act (for short Act ), prayer has been made on behalf of the applicant accused for compounding of the offence alleged to have been committed by him under Section 138 of the Act. No reply is intended to be filed on behalf of the non-applicant/respondent. Mr. Anirudh Sharma, learned counsel representing the respondent, fairly states that after passing of judgment dated 12.03.2024 passed by this Court, whereby judgment of conviction and order of sentence recorded by learned court below came to be upheld, parties have entered into the compromise, whereby respondent-complainant has received the entire amount of compensation and as such, prayer made in the instant application can be accepted. 2. Precisely, the facts of the case, as emerge from the record, are that respondent/Complainant (hereafter referred to as the complainant ) instituted a complaint under Section138 of the Act in the Court of learned Judicial Magistrate First Class, Rajgarh, Distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harma, 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 Rajasthan in Naresh Kumar Sharma versus State of Rajasthan another, Criminal Misc. Application No.371 of 2016 in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Supreme Court Cases 352, also in similar situation ordered for compounding of offence after recording of conviction by the courts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is it in any manner affected by the filing and subsequent withdrawal or dismissal of the Special Leave Petition. In support 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 three Judges Bench hold differently and secondly whether the two deal with different factual situations i.e. of a review having 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar (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 the order of the High Court refusing to modify the order of conviction. It was held that Section 362 of the Code of Criminal 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 judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised 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 obviousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 `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 `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. 7. In the case at hand, petitioner-accused has already paid the compensation amount to the respondent-complainant, as has been stated by him in his statement taken on record and as such, this court, in terms of S.147 of the Act and guidelines framed by Hon ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H. (2010) 5 SCC 663, can proceed to compound the offence. 8. Consequently in view of aforesaid, this court finds no impediment in accepting the prayer made on behalf of the applicant/accused through instant application for compounding of the offence and same is allowed. O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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