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TMI Blog2025 (2) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 - 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. 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 these circumstances, it is required to examine as to whether for entertaining the aforesaid case, any special circumstances are made out or not, so it can be legitimately argued and inferred and held that in all cases where the Revision Petitioner is able to satisfy this Court that there are special circumstances which can be clearly spelt out subsequent proceeding invoking inherent power of this court can be modified and cannot be thrown away on that technical argument as to its sustainability once the contesting parties entered into subsequent compromise. In the case of Krishan Vs. Krishnaveni [1997 (1) TMI 529 - SUPREME COURT], Hon'ble the Apex Court has held that though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47 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.
Conclusion - Taking into account the fact that the parties have settled the dispute amicably by way of compromise, this Court is of the view that the compounding of the offence as required to be permitted. The conviction and sentence imposed by the lower courts annulled, treating the revision petitioner as acquitted due to the compounding of the offense.
The trial court is directed to refund Rs.35,000/- already deposited by the Revision Petitioner in C.C.No.315 of 2018 along with accrued interest, if any, within a period of four weeks from the date of receipt of a certified copy of this order along with appropriate application before the trial court - The Criminal Revision Case is disposed of. X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner. On the appearance of the Revision Petitioner, copies have been furnished and the substance of allegation has been put to him. The Revision Petitioner has denied the allegation and has claimed to be tried. 6. After considering the arguments, the learned trial court has found the Revision Petitioner guilty of the offence under section 138 of the Negotiable Instruments Act and the Revision Petitioner has been convicted and sentenced to undergo Simple Imprisonment for a period of six months and also to pay a compensation of Rs.1,75,000/- to the complainant within two months from the date of judgment and in default, to undergo a sentence of Simple Imprisonment of two months. 7. Aggrieved by the judgment, the Revision Petitioner has preferred the appeal before the III Addl. District and Sessions Judge, Coimbatore in C.A.No.211 of 2020. 8. Thereafter, the first appellate court dismissed the appeal vide judgment and order dated 28.10.2021 by confirming the judgment of conviction and sentence imposed by the learned Metropolitan Magistrate, FTC No.1, @ ML, Coimbatore in C.C.No.315 of 2018 and it directed to secure the Revision Petitioner to undergo the sentence and to pay the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary endorsement in the demand draft itself and as the entire amount has been paid, he submitted that no amount is due from the revision petitioner. He further submitted that since the entire cheque amount has been paid, he has no objection for the revision petitioner to withdraw the amount of Rs.35,000/- which was already deposited by the revision petitioner before the trial court. 14. Learned counsel for the Revision Petitioner further submits that the present Revision has been filed during 2021 before this Court and on the basis of change in circumstances, as the parties have arrived at a settlement and the disputed cheque amount was settled to the respondent by way of draft before this court, it was prayed to this Court to compound the offence. It was further argued by the learned counsel for the Revision Petitioner that this Court has inherent powers to compound the offence, so that, ends of justice could be secured as the object of Negotiable Instruments Act is primarily compensatory and not punitive and moreover Section 147 of NI Act would have an overriding effect on section 320 Cr.P.C. Irrespective of which stage, the parties are compromising with the kind leave of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion petitioner also submitted that in the case of M/s Meters and Instruments Private Limited and another vs. Kanchan Mehta reported at 2017 (7) Supreme 558, the Hon'ble the Apex Court in para 18, was pleased to observe as under : i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. (ii)The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fast Track Court, Vadodara, therefore, on the given set of facts are hereby quashed and set aside as this court intends, otherwise to secure the ends of justice as provided under section 482 Cr.P.C. Obviously the order disposing Revision Application would not have any enforceable effect." 18. Learned counsel for the Revision Petitioner has also relied upon the judgment of Hon'ble the Apex Court in the case of Vinay Devanna Nayak vs. Ryot Seva Sahkari Bank Limited reported at AIR 2008 SC 716 wherein the Hon'ble Apex Court was pleased to observe as under : "18. Taking into consideration even the said provision (Section 147) and the primary object underlying Section 138, in our judgment, there is no reason to refuse compromise between the parties. We, therefore, dispose of the appeal on the basis of the settlement arrived at between the appellant and the respondent. 19. For the foregoing reasons the appeal deserves to be allowed and is accordingly allowed by holding that since the matter has been compromised between the parties and the amount of Rs.45,000/- has been paid by the appellant towards full and final settlement to the respondent-bank towards its dues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sections of the Indian Penal Code (45 of 1860), specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table - 2) The offences punishable under the Sections of the Indian Penal Code (45 of 1860), specified in the first two columns of the Table next following may, with the permission of the Court before which any prosecution for such offence is pending be compounded by the persons mentioned in the third column of that Table - 3) When any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner. 4) (a) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may, with the permission of the Court, compound such offence. (b) When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908 (5 of 1908) of such person may, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carriage and the spirit of compromise arrived at between the parties. This is perfectly justified and legal too. 27. 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 proceedings. 29. 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 these circumstances, I have to examine as to whether for entertaining the aforesaid case, any special circumstances are made out or not, so it can be legitimately argued and inferred and held that in all cases where the Revision Petitioner is able to satisfy this Court that there are special circumstances which can be clearly spelt out subsequent proceeding invoking inherent power of this court can be modified and cannot be thrown away on that technical argument as to its sustainability once the contesting parties entered into subsequent compromise. 30. In the case of Krishan Vs. Kr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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…" 35. Section 147 of NI Act begins with a non obstante clause and such clause is being used in a provision to communicate that the provision shall prevail despite anything to the contrary in any other or different legal provisions. So, in light of the compass provided, a dispute in the nature of complaint under section 138 of N.I. Act, can be settled by way of compromise irrespective of any other legislation including Cr.P.C. In general and section 320 (1)(2) or (6) of the Cr.P.C. in particular. The scheme of section 320 Cr.P.C. deals mainly with procedural aspects; but it simultaneously crystallizes certain enforceable rights and obligation. Hence, this provision has an element of substantive legislation and therefore, it can be said that the scheme of section 320 does not lay down only procedure; but still, the status of the scheme remains under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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." 37. 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 obligation to pay the amount of compensation if awarded, as per the scheme of N.I. Act, can compound the matter. The complainant i.e. person or persons affected can pray to the court that the accused, on compounding of the offence may be released by invoking jurisdiction of this court. If the parties are asked to approach the Apex Court then, what will be situation, is a question which is required to be considered in the background of another accepted progressive and pragmatic principle accepted by our courts that if possible, the parties should be provided justice at the door step. The phrase "justice at the door step" has taken the court to think and reach to a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the large number of complaints under the saidAct, 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. (i) xxxxxx (ii) xxxxxx (iii) xxxxxx (iv) to prescribe procedure for dispensing with preliminary evidence of the complainant. (v) xxxxxx (vi) xxxxx (vii) to make the offences under the Act compoundable. .....… 5. xxxxxx 6. The Bill seeks to achieve the above objects." 40. In a commentary the following observations have been made with regard to offence punishable under section 138 of the N.I. Act. [ Cited from : Arun Mohan, Some thoughts towards law reforms on the topic of Section 138 Negotiable Instrument Act -Tackling an avalanche of cases] : "... ... Unlike that for other forms of crime, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 45. 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 released by invoking inherent jurisdiction of this Court. 46. Generally, the powers available would not have been exercised when a statutory remedy under the law is available, however, considering the peculiar set of facts and circumstances it would not be in the interest of justice to relegate the parties to the court. Additionally when both the parties have invoked the jurisdiction of this Court and there is no bar on exercise of powers and the inherent powers of this court can always be invoked for imparting justice and bringing a quietus to the issue between the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit of C.C.No.315 of 2018 before the trial court. 51. In view of the above, the trial court is directed to refund Rs.35,000/- already deposited by the Revision Petitioner in C.C.No.315 of 2018 along with accrued interest, if any, within a period of four weeks from the date of receipt of a certified copy of this order along with appropriate application before the trial court. 52. Office is directed to communicate this order to the learned trial court concerned immediately. 53. In the result, ● The Criminal Revision Case is disposed of in terms settlement arrived at between the parties. ● The impugned conviction and sentence passed in C.A.No.211 of 2020 dated 20.10.2021 by the learned III Addl. District Sessions Judge, Coimbatore, confirming the conviction and sentence made in C.C.No.315 of 2018, dated 01.10.2020 by the learned Judicial Magistrate, FTC.No.1 @ ML, Coimbatore are hereby modified. ● The conviction and sentence imposed on the Revision Petitioner by both the courts below stands anulled. ● The Revision Petitioner shall be treated as acquitted on account of compounding of the offence with the complainant/respondent. ● The trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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