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1995 DIGILAW 930 (MAD)

M. Mohan Reddy v. Jairaj D. Bhale Rao

1995-11-15

Y.V.NARAYANA

body1995
Judgment : This petition is filed by the complainant in CC No. 284 of 1993 on the file of the learned V. Metropolitan Magistrate, Hyderabad seeking permission of this Court to permit him (the petitioner) to compound the offence punishable under Section 138 of Negotiable Instruments Act XXVI of 1881 and allow the Criminal Appeal No. 258 of 1995 which is filed against C.C. No. 284 of 1993 and which is pending. 2. The brief facts of the case are as under : The petitioner-complainant advanced a sum of Rs. 11,00,000/- on 3-2-1992 and another sum of Rs. 10,00,000/- on 26-3-1992 to the first respondent herein who is the accused in the case. The first respondent issued five cheques drawn on Canara Bank, Somajiguda, Hyderabad to the petitioner herein towards repayment of the amounts advanced to him. The cheques were dishonoured as the "funds are insufficient". Therefore the petitioner filed the complaint. The learned Magistrate, after full trial, found the first respondent guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him and sentenced him to suffer Rigorous Imprisonment for a period of one year and also to pay a fine of Rs. 5,000/-in default to suffer Simple Imprisonment for a period of two months. Aggrieved by the said judgment, the first respondent carried the matter in appeal Crl. A. No. 258 of 1995 on the file of the learned IV Addl. Metropolitan Sessions Judge, Hyderabad which is still pending. Subsequent to the filing of Crl. A. No. 258 of 1995, the first respondent paid the entire amount due to the petitioner, who acknowledged the receipt of the same. Therefore the petitioner filed the present petition seeking permission to permit him to compound the said offence. Along with the petition both the petitioner and the first respondent filed separate affidavits. In the affidavit filed by the petitioner, who is the complainant in the case, he stated that he received the full amounts relating to the dishonoured cheques issued by the first respondent; that they entered into a compromise and that he has no objection to allow the appeal preferred by the first respondent. 3. The point that arises for consideration in this petition is : Whether the petitioner can be permitted to compound the offence punishable under Section 138 of the Negotiable Instruments Act with the first respondent ? 4. 3. The point that arises for consideration in this petition is : Whether the petitioner can be permitted to compound the offence punishable under Section 138 of the Negotiable Instruments Act with the first respondent ? 4. Compounding of offences is provided in Section 345 of the Code of Criminal Procedure Act V of 1898. The Old Cr.P.C. was repealed by the New Cr.P.C. Act II of 1974. Section 320 of the new Cr.P.C. deals with the compounding of offences mentioned therein. The new Cr.P.C. dealt with compounding of offences punishable under the Indian Penal Code only, but not dealt with the offences under other penal laws. The Negotiable Instruments Act is silent about the compounding of the offence punishable under section 138 of the said Act. In these circumstances, let us see the legal position. 5. Sri K. V. Satyanarayana, learned counsel for the first respondent, has brought to my notice two decisions of this Court - one by a Division Bench and another by a single Judge, to which a mention is made hereunder. 6. The Division Bench of this Court in Daggupati Jayalakshmi v. State 1993 (2) ALT (Cri) 159 considered the question very elaborately relating to granting of permission to compound the offence punishable under Section 498-A of the Indian Penal Code, which is a non-compoundable offence according to Section 320 Cr.P.C. (new) and held that permission may be granted for compounding the offence under Section 498-A IPC as the compromise entered into by the parties is for the benefit of their future life and also for the benefit of their childern. 7. B. Sudershan Reddy, J., in the decision reported in Annamdevula Srinivasa Rao v. State of A.P. 1995 (3) ALT 349 considered the issue regarding granting of permission to compound the offences punishable under Sections 498-A and 307 IPC and also the offence punishable under Section 138 of the Negotiable Instruments Act. He discussed the matter very elaborately and held that the decision of the Division Bench in Jayalakshmis case 1993 (2) ALT (Cri) 159 must be regarded as given in per incuriam and the High Court has no power and jurisdiction to direct the subordinate Criminal Courts to permit the parties to compound the offences which are otherwise non-compoundable in exercise of the inherent jurisdiction under Section 482 Cr.P.C. 8. Mr. Mr. K. V. Satyanarayana, learned counsel appearing for R-1 brought to my notice about the intention of the Legislature in deleting the column in the old Cr.P.C. regarding compoundability of offences against other Laws. 9. In Schedule-II of the old Cr.P.C., there is a mention about the offences against other laws i.e., offences other than IPC. In that table there is a column relating to compounding of offences. According to old Cr.P.C. all the offences, irrespective of length of sentence, against other laws are not compoundable. So according to old Cr.P.C. the offence punishable under Section 138 of the Negotiable Instruments Act is a non-compoundable offence. In the new Cr.P.C. in the First Schedule Classification of offences against other laws was tabulated. In that table whether the offence against other laws in compoundable or not is not specified. That means the column in the old Cr.P.C. mentioning that all the offences against other laws are not compoundable is omitted in the new Code. By that we can draw inference that the prohibition of compounding the offences against other laws is taken away by the new Cr.P.C. Thus according to the new Cr.P.C, since there is no specific mention about the compounding of offences against other laws; and since Section 320(9) Cr.P.C. (new) says that "no offence shall be compounded except as provided by this Section" i.e. a prohibition regarding compounding of offences mentioned in that Section only; since the new Cr.P.C. is silent regarding the compounding of offences against other laws; especially since the column in the Second Schedule of old Cr.P.C. stating that the offences against the other laws are not compoundable is deleted in the new Cr.P.C., it can be safely inferred that the Legislation, while drafting the new Cr.P.C., intended to permit the offences against other laws to be compounded. 10. The provision of Section 320 Cr.P.C. (new) permitting agreement between the injured person and the offender to terminate the criminal proceedings against the offender cannot be viewed as unlawful or as opposed to public policy. Permitting the parties to compound the offence does not mean that an offence has not been committed; but only means that it has been committed but the victim is willing either to forgive it or to accept some form of a solatium as sufficient compensation for what he has suffered. Permitting the parties to compound the offence does not mean that an offence has not been committed; but only means that it has been committed but the victim is willing either to forgive it or to accept some form of a solatium as sufficient compensation for what he has suffered. The Law Commission in its 41st Report, regarding Section 345 of Cr.P.C. (old), has observed thus : "The broad principle that forms the basis of the present scheme is that where the offence is essentially of a private nature and relatively not serious, it is compoundable. It is, in our opinion, better to have clear and specific provisions such as those contained in S. 345 than a general rule which is likely to lead to different interpretations. A rule to the effect that an offence will be compoundable if the maximum punishment provided for it is not more than three years imprisonment will, no doubt, be definite but will not in our opinion, be suitable". Thus the policy of the Legislature adopted in Section 320 Cr.P.C. is that in the case of certain minor offences, where the interests of the public are not vitally affected, the complainant should be permitted to come to terms with the party against whom he complains. The principle seems to be that wrongs of certain classes which affect mainly a person in his individual capacity or character may be sufficiently redressed by compensation. Where a case has once been brought to the Court and the parties have adjusted the matter between themselves lawfully, it cannot be said that they are hushing up the matter. 11. In view of the above, I find myself unable to agree with the finding of my learned Brother Sudershan Reddy, J., that the parties cannot be permitted to compound the offence punishable under Section 138 of the Negotiable Instruments Act; mainly on the ground that the column regarding compounding of offences in the Second Schedule in old Cr.P.C. is intentionally taken away by the Legislation and Section 320 Cr.P.C. (new) deals with the offences punishable under the Indian Penal Code only and does not lay any bar or prohibition regarding compounding of offences against the other Laws. 12. 12. In view of the above, I feel it just and proper to permit the petitioner to compound the offence punishable under Section 138 of the Negotiable Instruments Act with the first respondent-accused and allow the Crl. A. No. 258 of 1995. Accordingly this Crl. Misc. Petition is allowed; the petitioner herein is permitted to compound the offence punishable under Section 138 of the Negotiable Instruments Act with the first respondent-accused; Crl. A. No. 258 of 1995 on the file of the IV Metropolitan Magistrate is allowed and the first respondent-accused is acquitted of the charge, setting aside the conviction and sentence passed by the learned V Metropolitan Magistrate, Hyderabad in C.C. No. 284 of 1993. Petition allowed.