9911796707
TMI Blog2025 (2) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs. 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 that the Revision petitioner/accused obtained a loan from the respondent/complainant based on a pro-note and to discharge the same, the Revision Petitioner issued a cheque bearing No.006423, dated 16.02.2018 for a sum of Rs.5,00,000/- drawn on Centurion Bank of Punjab Limited (now HDFC Bank), Gandhipuram Branch, Coimbatore in favour of the respondent. When he respondent presented the cheque for collection with his Banker viz., Corporation Bank, Narasipuram Branch, Coimbatore on 16.02.2018, the same was returned with an endorsement "No such account" vide return memo dated 19.02.2018. Therefore, the respondent issued a statutory notice dated 09.03.2018 calling upon the Revision Petitioner to pay the cheque amount within 15 days. The Revision Petitioner received the notice on 10.03.2018 and thereafter he did not repay the cheque amount. Hence the respondent/complainant filed a complaint against the Revision Petitioner/accused for the offence under section 138 of the Negotiable Instruments Act before the Judicial Magistrate I, Coimbatore in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived sum of Rs.3,00,000/- on various dates and the balance is Rs.2,00,000/- for that the petitioner taken the demand draft in favour of the respondent through Sough Indian Bank, Coimbatore Raja Street vide D.D.No.790162, dated 11.12.2024. 5. It is submitted by the respondent that since he received the cheque amount and he is willing to compound the offence. Therefore, the conviction and sentence imposed by the courts below may be set aside. It is therefore prayed that this Honourable Court may be pleased to record this compromise memo and compound the above offence and acquit the petitioner who is convicted and sentence din C.A.No.21 of 2021 on the file of the IV Additional District and Sessions Judge, Coimbatore, dated 18.03.2022 confirming the judgment passed in C.C.No.509 of 2018 by the Judicial Magistrate, Fast Track Court No.1 at Magisterial Level, Coimbatore dated 07.11.2020 by allowing the joint compromise petition in the above revision in Crl.R.C.No.812 of 2022 and thus render justice." 10. The Joint Compromise petition dated 13.12.2024 filed by both the petitioner and the respondent is taken on record . 11. Learned counsel for the Revision Petitioner submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding 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 that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering 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 manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. 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. 21. The learned Govt. Advocate (crl.side) also further submitted that the appeal has been rejected on merit and the Revision Petitioner was convicted, then where 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 nothing, but a gross misuse of the process of law and thus sentence cannot be compounded on the basis of compromise as filed by the parties. 22. I have heard the learned counsel for the Revision Petitioner, learned counsel for the respondent and learned Govt. Advocate (crl.side) appearing for the State and perused the materials placed on record. 23. Considering the facts as narrated above, the following question arose for consideration. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 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." 25. I have to refer the compromise deed which is on the record for proper adjudication :- "JOINT COMPROMISE PETITION FILED BY THE PETITIONER AND THE RESPONDENT FILED UNDER SECTION 147 OF NEGOTIABLE INSTRUMENTS ACT The Petitioner and the Respondent humbly submit as follows:- 1. The Petitioner submits that the respondent filed a private complaint in C.C.No.509 of 2018 by the Judicial magistrate, Fast Track Court No.1 at Magisterial Level, Coimbatore against petitioner on the allegation that he has committed offence under section 138 of Negotiable Instruments Act. 2. The Petitioner submits that the trial court by its judgment dated 07.11.2020 convicted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 27. 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. 28. 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 senten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court presently, concerned with an offence punishable under 'N.I. Act'. 34. 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..." 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 disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n '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." 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 affe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deficient in dealing with dishonour of cheques. Notonly the punishment provided in the Act has proved to be inadequate, theprocedure prescribed for the courts to deal with such matters has beenfound to be cumbersome. The Courts are unable to dispose of such casesexpeditiously 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 44. 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. 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 avail ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
