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2000 DIGILAW 355 (KAR)

M. RANGASWAMAIAH v. R. SHETTAPPA

2000-05-30

G.PATRI BASAVANA GOUD

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G. PATRI BASAVANA GOUD, J. ( 1 ) ON the complaint filed by the respondent, alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 ('act' for short), the petitioner came to be convicted by the learned Magistrate of the said offence, and sentenced to pay a fine of Rs. 75,000/-, in default, to undergo simple imprisonment for four months. Since the amount covered by the cheque concerned was Rs. 50,000/-, the learned Magistrate directed that, out of the fine amount of Rs. 75,000/-, a sum of Rs. 50,000/- be paid to the respondent-complainant. The petitioner-accused's appeal before the learned Sessions Judge came to be dismissed. The petitioner has now approached this Court under S. 397, Cr. P. C. ( 2 ) IN course of hearing of this revision petition, the petitioner and the respondent have presented an application under S. 320 (6), Cr. P. C. Both the parties, along with their counsel, are present in Court, and the parties submit that they have compounded the offence. The respondent-complainant also submits that the petitioner-accused has paid the amount covered by the cheque to him. I find that the parties have done so voluntarily. It is true, sub-sec. (6) of S. 320, Cr. P. C. permits the revisional Court also to allow compounding of the offence, but the person concerned should be competent to compound under S. 320, Cr. P. C. , as further made clear in sub-sec. (6) of S. 320, Cr. P. C. The entire S. 320, Cr. P. C. , both in sub-sec. (1) and in sub-sec. (2), deals with compounding of offences punishable under the Indian Penal Code. Sub-sec. (9) of S. 320, Cr. P. C. provides that, no offence shall be compounded except as provided by S. 320 Cr. P. C. That means that, so far as the offences punishable under the one or the other Sections under the Indian Penal Code, there could be no compounding of any such offence except as provided in S. 320, Cr. P. C. The question is as to what should be the position in respect of an offence punishable under any other Act. ( 3 ) SUB-SECTION (1) of Section 4, Cr. P. C. The question is as to what should be the position in respect of an offence punishable under any other Act. ( 3 ) SUB-SECTION (1) of Section 4, Cr. P. C. provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained in the Code of Criminal Procedure, Sub-section (2) of Section 4 of Cr. P. C. provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions of the Cr. P. C. , subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Compounding of an offence could be brought into the category of "otherwise dealing with the offence". So far as compounding of an offence punishable under the Indian Penal Code, there could be no way of dealing with it, other than to the extent as set out in Section 320, Cr. P. C. so far as offences under the other Acts are concerned, if compounding of a particular offence under any other law or enactment is to be viewed from an angle different from the one provided in Section 320, Cr. P. C. , then, I am of the opinion that, as permitted by Section 4 (2), Cr. P. C. , the aspect of compounding of the said offence under the said other enactment should be dealt with in the manner as indicated in the said other enactment, notwithstanding the embargo in sub-section (9) of Section 320, Cr. P. C. The question that therefore arises would be as to whether the Act, i. e. , the Negotiable Instruments Act, indicates a different approach. ( 4 ) SCHEDULE-II of the Code of Criminal Procedure, 1898 ('old Code' for short) set out a Tabular Statement of Offences containing eight columns, one of which related to whether a particular offence is compoundable or not. Initially dealing with the offences under the Indian Penal Code, the said Tabular Statement, as the end, dealt with offences against other laws. The said portion of the statement would show that, irrespective of the punishment, no offence under any other law was compoundable. Initially dealing with the offences under the Indian Penal Code, the said Tabular Statement, as the end, dealt with offences against other laws. The said portion of the statement would show that, irrespective of the punishment, no offence under any other law was compoundable. It could therefore be said that, in spite of Section 5 of the old Code corresponding to Section 4 of the present Code, compounding of the offence under any law other than the Indian Penal Code would be totally prohibited unless the said other law expressly permitted compounding of the offences. Now under the present Code, Part-II of the First Schedule to the Code dealing with classification of offences under other laws does not contain a column totally prohibiting compounding of offences under other laws in the manner it has been so in the old Code. That means that, in the present Code, there is no express prohibition against compounding of an offence under other laws. In the absence of such prohibition in the present Code, and where the Negotiable Instruments Act itself is silent, the question is whether the said offence could be compounded. ( 5 ) THE provisions of sub-sections (1) and (2) of Section 320, Cr. P. C. permitting compounding of some of the offences punishable under some Sections of Indian Penal Code, and sub-section (9) of Section 320, Cr. P. C. prohibiting compounding of any offence otherwise than in the manner provided in Section 320, Cr. P. C. , coupled with the absence of prohibition under the Cr. P. C. for compounding of offences under other laws, would indicate that, so far as the offences punishable under the Indian Penal Code, the aspect of compounding of offences has been dealt with by way of Section 320, Cr. P. C. , the present Cr. P. C. should be taken as being silent on the said aspect of compounding, or at least there is no prohibition, express or implied, in the present Cr. P. C. so far as compounding of offences under any other law is concerned. Therefore, in view of Section 4 (2), Cr. P. C. , the aspect of compounding would be permissible to be looked at in respect of offences under any other law in the spirit of what the said other law deals with it, rather than in the spirit of Section 320, Cr. Therefore, in view of Section 4 (2), Cr. P. C. , the aspect of compounding would be permissible to be looked at in respect of offences under any other law in the spirit of what the said other law deals with it, rather than in the spirit of Section 320, Cr. P. C. We therefore come to the Negotiable Instruments Act. There is no prohibition in the said Act against compounding of an offence punishable under Section 138 of the said Act. In the absence of any such prohibition therefore, where the Court finds that the parties have settled the matter, where the complainant being present before the Court submits before the Court that the accused has paid him the money covered by the cheque, it would be appropriate to allow the parties to compound, rather than negativing such a joint request made by the parties, and proceeding to inflict the sentence on the accused. Particularly when there is no prohibition against compounding, any rejection of a request in that regard would not further the cause of the justice, and particularly where the commission of offence is not related to the society at large, but only against a particularl person, viz. , the complainant to whom certain sum is due under the cheque. I am therefore of the opinion that it would be legally permissible for the parties to compound the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. ( 6 ) IN Mohan Reddy v. Jairaj D. Bhale Rao, 1996 (1) Crimes 333 : (1996 Cri LJ 1010) (AP), and Naimesh Pandya v. State of Gujarat, 1998 Cri LJ 4424 (Guj), compounding of an offence under Section 138 of Negotiable Instruments Act was permitted respectively by the Andhra Pradesh High Court and Gujarat High Court. ( 6 ) IN Mohan Reddy v. Jairaj D. Bhale Rao, 1996 (1) Crimes 333 : (1996 Cri LJ 1010) (AP), and Naimesh Pandya v. State of Gujarat, 1998 Cri LJ 4424 (Guj), compounding of an offence under Section 138 of Negotiable Instruments Act was permitted respectively by the Andhra Pradesh High Court and Gujarat High Court. Even in a case where the conviction under Section 138 of the Negotiable Instruments Act had been upheld by all the three forums, the Supreme Court, at the stage of SLP, where the complainant, having received the entire money, stated before the Supreme Court that he has no objection if the conviction was set aside, the Supreme Court permitted the complainant and the accused entering into a compromise, and proceeded to set aside the conviction and sentence, though the Supreme Court did so, as specifically observed by it in course of the order, in the peculiar facts and circumstances of the case that was being dealt with by it. That was in O. P. Dholakia v. State of Haryana (2000) 1 SCC 762 . ( 7 ) IN view of the above, the application is allowed. The complainant-respondent in permitted to compound the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The petitioner-accused is acquitted of the said offence punishable under the said Act, 1881. Revision Petition disposed of accordingly. Order accordingly. --- *** --- .