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TMI Blog2024 (9) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... ompensation, prayer for compounding the offence can be accepted in terms of judgment passed by the Hon ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [ 2010 (5) TMI 380 - SUPREME COURT ], 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. The 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. Amount, if any, deposited by the petitioner before the court below be released in his favour on his filing appropriate application. Petition disposed off. - Hon ble Mr. Justice Sandeep Sharma, Judge For the Petitioner : Mr. Pawan Kumar Thakur, Advocate For the Respondent : Mr. Arvind Sharma, Advocate ORDER Sandeep Sharma, J. (Oral) By way of instant petition filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita (BNSS) read with Section 147 of Negotiable Instruments Act, 1881, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 6. Mr. Arvind Sharma, learned counsel for respondent-Bank, while fairly acknowledging factum with regard to receipt of amount under One Time Settlement Scheme by the respondent-bank contends that since respondent complainant has already received the entire amount of compensation awarded by the court below, respondent shall have no objection in case prayer made for compounding the offence is accepted and petitioner is acquitted of the offence alleged to have been committed by him under Section 138 of the Negotiable Instruments Act. 7. Though parties have resolved to settle their dispute amicably inter-se them as is evident from the statement of learned counsel for the respondent, but now question which requires to be decided at the first instance is whether this court after upholding the judgment of conviction and order of sentence recorded by the court below can proceed to review its own judgment dated 31.3.2023, whereby criminal revision petition having been filed by the petitioner accused came to be dismissed or not? . 8. 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 judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 dated 6.10.2016 is recalled and all the orders whereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code. 10. 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 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 withdrawn, the effect of such withdrawal is as if, it had not been preferred. It is a diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted. 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 conflict in the two. 17. We now proceed to analyze whether Sunil Kumar (supra) carves out any di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable. 12. 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 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to have differed in law with the High Court. 13. Since in the case at hand, petitioner after being convicted under Section 138 of the Act has compromised the matter with the respondent-complainant-Bank 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. 14. Consequently, in view of the detailed discussion made hereinabove as well as law laid down by the Hon ble Apex Court, parties are permitted to get the matter compounded in the light of the compromise arrived inter se them. Accordingly, judgment of convi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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