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TMI Blog2025 (1) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and sentence was upheld by the appellate court, but it cannot be lost sight of the fact that this Court has power to intervene in exercise of its power only with a view to do the substantial justice or to avoid a miscarriage and the spirit of compromise arrived at between the parties. This is perfectly justified and legal too. In the instant case, the Revision Petitioner is invoking the inherent power of this court after dismissal of the appeal confirming his conviction and sentence - In the case of Krishan Vs. Krishnaveni [ 1997 (1) TMI 529 - SUPREME COURT] , Hon'ble the Apex Court has held that though the inherent power of the High Court is very wide, yet the same must be exercised sparingly and cautiously particularly in a case where the applicant is shown to have already invoked the revisional jurisdiction under section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may in its discretion prevent the abuse of process or miscarriage of justice by exercising its power. Section 147 of NI Act begins with a non obstante clause and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Judicial Magistrate Fast Track Court, Kallakurichi. 3. The learned trial Judge has convicted the Revision Petitioner/accused under section 138 of Negotiable Instruments Act and sentenced him to undergo SI for a period of one year and also directed him to pay a compensation of Rs.20,00,000/- within two months from the date of judgment, in default, to undergo SI for three months. The conviction and sentence imposed by the trial court was also confirmed by the First Appellate Court. 4. The facts of the case in brief are as follows; (i) The Revision Petitioner/accused borrowed a sum of Rs.20,00,000/- as a hand loan from the respondent/ complainant on 17.12.2025 and issued a post-dated cheque on 10.12.2018 in favour of the respondent drawn on Axis Bank, Attur Branch, bearing Cheque No.050755 for a sum of Rs.20,00,000/-. (ii) When the respondent presented the said cheque for encashment through his Bankers viz., Lakshmi Vilas Bank, Chinna Salem on 13.12.2018, the same was returned as unpaid on 14.12.2018 with an endorsement memo 'Drawers Signature Differs'. (iii) Therefore, the respondent sent a legal notice to the Revision Petitioner on 09.01.2019 and the same was receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishable u/s.138 of NI Act. The Hon'ble Trial Court after full-fledged trial, convicted the Petitioner u/s.138 of NI Act and sentencing him to undergo one year Simple Imprisonment and to pay a sum of Rs.20,00,000/- as compensation to the Respondent, in default, Simple Imprisonment for three months vide its judgment dated 30.01.2020. Against which the petitioner preferred appeal before the Additional Sessions Judge, Villupuram at Kallakurichi in C.A.No.7 of 2020 and after hearing the arguments the said Appellate Court by its order dated 21.12.2021 confirmed the Judgment and Sentence passed by the learned Judicial Magistrate. The Petitioner aggrieved over the same the present Revision has been preferred by the petitioner before this Hon'ble Court which is pending before this Hon'ble Court. 2. It is humbly submitted that, during the pendency of the present Revision Petition, amicable settlement was reached between the petitioner and the respondent for a sum of Rs.19,00,000/- and the said settlement amount has been paid by the Petitioner to the Respondent on 11.10.2022. Based on this, the Petitioner and Respondent are filing this compromise memo to allow the above Crl.R.C.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Damodar S. Prabhu vs. Sayed Babalal H reported at 2010 (2) SCC (Cri) 1328, the Hon'ble Apex Court had formulated the guidelines for compounding the offence under section 138 N.I. Act wherein in para 21, it was pleased to observe as under : With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:- THE GUIDELINES (i) In the circumstances, it is proposed as follows: (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused. (iv) Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases. (v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the Revision Petitioner has argued that the law regarding compounding of offences under the N.I. Act is very clear and is no more res integra and the offences under the N.I. Act can be compounded even at any stage of the proceedings. He submits that in terms of the aforesaid law laid down by the Hon'ble Supreme Court, the parties may be permitted to compound the offence and the conviction of the petitioner be set aside. 15. Per contra, Mr.A.Gopinath, the learned Govt. Advocate (crl.side) who appeared for the State and assisted this Court in the matter, has vehemently opposed the submissions made by the learned counsel for the Revision Petitioner and submits that the Revision Petitioner has already been convicted by the learned trial court and the conviction order had already been upheld by the Appellate Court in the appeal. 16. The learned Govt. Advocate (crl.side) also further submitted that the appeal has been rejected on merit and the Revision Petitioner was convicted, then whether the parties or any one of them can be permitted to place compromise and to get the order of acquittal from the Court is the question. He further submitted that the present case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout the leave of the Court to which he is committed, or as the case may be, before which the appeal is to be heard. 6. A High Court or Court of Session acting in the exercise of its powers of revision under Section 401 may allow any person to compound any offence which such person is competent to compound under this section. 7. No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence. 8. The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. 9. No offence shall be compounded except as provided by this section. Section 147 of the Negotiable Instrument Act :' Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable. 20. I have to refer the Joint Compromise Memo dated 17.10.2022 filed by both parties which is on the record for proper adjudication :- JOINT COMPROMISE MEMO FILED BY THE PETITIONER AND RESPONDENT '1. It is submitted that the Respondent filed a case against the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code or Act, depending upon the facts of the given case. This Court can always take note of any miscarriage of justice and prevent the same by exercising its power. These powers are neither limited, nor curtailed by any other provision of the Code or Act. However, such inherent powers are to be exercised sparingly and with caution 22. In the instant case, it is true that the appeal was dismissed and the conviction and sentence was upheld by the appellate court, but it cannot be lost sight of the fact that this Court has power to intervene in exercise of its power only with a view to do the substantial justice or to avoid a miscarriage and the spirit of compromise arrived at between the parties. This is perfectly justified and legal too. 23. I have considered the judgments cited by the learned counsel for the Revision Petitioner as well as by the learned Counsel for the State and other decisions of the Hon'ble Apex Court and I do not think it necessary to enlist those decisions which are taken into consideration for the purpose of the present proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 'N.I. Act' or the offence mentioned under section 320 of Cr.P.C., can be compounded only if High Court or Court of Sessions grants permission for such purpose. The Court presently, concerned with an offence punishable under 'N.I. Act'. 29. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point I can refer to the following extracts from an academic commentary [Cited from : K.N.C. Pillai, R.V. Kelkar's Criminal Procedure, 5th Edition : 17.2 - compounding of offences - A crime is essentially a wrong against the society and the State. Therefore, any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. However, where the offences are essentially of a private nature and relatively not quite serious, the Code considers it expedient to recognize some of them as compoundable offences and some others as compoundable only with the permission of the court... 30. Section 147 of NI Act begins with a non obstante clause and such clause is being used in a provision to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proper effect to the non- obstante clause in clause (b) with due regard to its other provision that the letting value should be reasonable 31. The expression 'special law' means a provision of law, which is not applicable generally but which applies to a particular or specific subject or class of subjects. Section 41 of Indian Penal Code stands on the same footing and defines the phrase special law. In this connection I would like to quote the well accepted proposition of law emerging from various observations made by the Hon'ble Apex Court in different decisions as a gist of the principle and it can be summarised as under: When a special law or a statute is applicable to a particular subject, then the same would prevail over a general law with regard to the very subject, is the accepted principle in the field of interpretation of statute. 32. In reference to offence under section 138 of N.I. Act read with section 147 of the said Act, the parties are at liberty to compound the matter at any stage even after the dismissal of the revision/appeal. Even a convict undergoing imprisonment with the liability to pay the amount of fine imposed by the court and/or under an obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the instrument. The existing provisions in the Negotiable Instrument Act, 1981, namely Section 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. 2. A large number of cases are reported to be pending under Sections 138 and 142 of the Negotiable Instruments Act in various courts in the country. Keeping in view the large number of complaints under the said Act, pending in various courts, a Working Group was constituted to review Section 138 of the Negotiable Instruments Act, 181 and make recommendations as to what changes were needed to effectively achieve the purpose of that Section. 3. ............. 4. Keeping in view the recommendations of the Standing Committee on finance and other R/SCR.A/2491/2018 ORDER representations, it has been decided to bring out, inter alia the following amendments in the Negotiable Instrument Act 1881, namely. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir dispute, furthermore, the arguments on behalf of the Govt. Advocate (crl.side) on the fact that unlike Section 320 Cr.P.C., Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court. 39. I am also conscious of the view that judicial endorsement of the above quoted guidelines as given in the case of Damodar S. Prabhu (supra) could be seen as an act of judicial law making and therefore an intrusion into the legislative domain. It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. I have already explained that the scheme contemplated under Section 320 of the Cr.P.C. cannot be followed in the strict sense. 40. In view of the aforesaid discussion, the parties, in reference to offence under Section 138 N.I. Act read with Section 147 of the said Act are at liberty to compound the matter at any stage. The complainant i.e. the person or persons affected can pray to the court that the accused, on compounding of the offence may be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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