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2004 DIGILAW 1826 (RAJ)

Satya Narayan v. State of Rajasthan

2004-12-22

H.R.PANWAR

body2004
Judgment H.R. Panwar, J.-Both these Criminal Revision Petitions under Section 397/401, CrPC, are directed against the Judgment and order dated 27.08.2004 passed by Additional Sessions Judge, No. 1, Sriganganagar (for short the appellate Court hereinafter) in Cr. Appeal Nos. 42 and 43 of 2004 filed by the petitioner, whereby the appellate Court partly allowed the appeals while maintaining the conviction of the petitioner for the offence under Session 138 of the Negotiable Instrument Act, 1881 (for short the Act hereinafter) modifying the sentence from three months simple imprisonment and fine of Rs. 45,000/-to the sentence for the period up to rising of the Court. Aggrieved by the orders impugned of conviction and sentence, the petitioner has filed the aforesaid two revision petitions. Since, both these revision petitions involve the common question of law and facts and are between the same parties, therefore, with the consent of the learned Counsel for the parties, they are being decided together. 2. Briefly stated the facts of the case which are relevant and necessary for the decision of these revisions are taken from the Criminal Revision No. 910/04 arising out of Criminal Appeal No. 42/04. 3. Respondent No. 2 Ashok Kumar filed a complaint under Section 138 of the Act against the petitioner, inter alia, alleging therein that on 11.08.1999 the petitioner issued a cheque for a sum of Rs. 30,000/-in favour of respondent No. 2 The said cheque was presented to the bank for encashment. However, it was dishonoured on account of closure of the bank account by the petitioner. A legal notice was sent by respondent No. 2 to the petitioner as envisaged under Section 138 of the Act for making payment of the cheque amount. The petitioner failed to pay the amount within the time stipulated in the notice and, therefore, after expiry of requisite period, the complaint was filed against the petitioner. By Judgment and order dated 111.2003, Additional Chief Judicial Magistrate, Sriganganagar (for short the trial Court hereinafter) found the petitioner guilty of the offence under Section 138 of the Act and, therefore, convicted the petitioner to undergo simple imprisonment for a period of three months and a fine of Rs. 45,000/-, in default of payment of fine to further undergo 15 days simple imprisonment. Against the order of the trial Court, the petitioner filed an appeal before the appellate Court being Criminal Appeal No. 42/04. 45,000/-, in default of payment of fine to further undergo 15 days simple imprisonment. Against the order of the trial Court, the petitioner filed an appeal before the appellate Court being Criminal Appeal No. 42/04. During the pendency of the appeal, on 27.08.2004 complainant respondent No. 2 Ashok Kumar appeared before the appellate Court and filed a compromise compounding the offence. It was stated in the compromise that the parties have compromised the matter in the Panchayat and entire cheque amount has been returned to respondent No. 2 complainant and there remains nothing outstanding. The compromise filed by respondent No. 2 was signed by the complainant Ashok Kumar as well as by petitioner Satya Narayan. The complainant and the accused petitioner were identified by their respective Counsel. The appellate Court instead of accepting the compromise and acquitting the petitioner, affirmed the conviction. However, by taking a lenient view, the sentence of imprisonment was reduced to the period till rising of the Court on the ground that the complainant has compounded the offence and filed the compromise. 4. It is contended by the learned Counsel for the petitioner that the offence punishable under Section 138 of the Act is compoundable under Section 147 of the Act, and, therefore, the appellate Court ought not to have maintained the conviction and sentence of the petitioner but the petitioner should have been acquitted on the strength of compounding the offence. Learned Counsel appearing on the other side could not support the impugned orders. 5. Section 147 of the Act reads as under.-"Section 147. Offences to be compoundable.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable." 6. The appellate Court has not assigned any reason for not acquitting the petitioner though the appellate Court in its Judgment impugned stated that on 27.08.2004, complainant Ashok Kumar appeared personally before the appellate Court and filed the compromise compounding the offence. Thus, from the record and even from the Judgment s impugned, it is very much clear that respondent No. 1 complainant Ashok Kumar compounded the offence by filing a compromise before the appellate Court on 27.08.2004. The compromise has been signed by complainant respondent No. 2 as also by the accused petitioner and it was submitted jointly by the complainant and the accused. The compromise has been signed by complainant respondent No. 2 as also by the accused petitioner and it was submitted jointly by the complainant and the accused. At any rate, the offence under Section 138 of the Act is compoundable under Section 147 of the Act, even there is no requirement for seeking permission to compound. The complainant, at any rate, more particularly, at the stage of appeal, is competent to compound the offence. 7. Section 320, CrPC, provides compounding of the offence and the offence enlisted in table one can be compounded by the person by whom offence may be compounded even without permission of the Court, and the offence punishable under Sections of Indian Penal Code in second table can be compounded by the persons by whom the offence may be compounded with the permission of the Court. Sub-section (5) of Section 320, CrPC, provides that when the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard. Sub-section (6) of Section 320, CrPC, provides that 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. Sub-section (8) of Section 320, CrPC, provides that 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. 8. Thus, from the bare reading of Sub-section (5) and Sub-section (6) of Section 320, CrPC, it is clear that the person competent to compound the offence can compound the offence at the stage of appeal or revision. 9. In the instant case, respondent No. 2 is the competent person to compound the offence as he is complainant who has suffered on account of dishonour of cheque and after having received the cheque amount from the petitioner has settled the matter and submitted the compromise before the appellate Court compounding the offence. 10. 9. In the instant case, respondent No. 2 is the competent person to compound the offence as he is complainant who has suffered on account of dishonour of cheque and after having received the cheque amount from the petitioner has settled the matter and submitted the compromise before the appellate Court compounding the offence. 10. In M. Rangaswamaiah vs. R. Shettappa, 2002 CrLJ 4792 , Karnataka High Court held that in view of Section 4(2), CrPC, 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, CrPC. There is no prohibition in the Negotiable Instrument 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 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 impose 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 particular person viz. the complainant to whom certain sum is due under the cheque. 11. In O.P. Dholakia vs. State of Haryana & Anr., 2000 (1) SCC 762 , Honble Supreme Court granted permission to compound the offence punishable under Section 138 of the Act. In the matter before Honble Apex Court, the complainant had alrady entered into compromise and the entire money has been received by the complainant. He had no objection if the conviction already recorded under Section 138 of the Negotiable Instrument Act is set aside. The Apex Court taking into consideration the nature of offence in question and the fact that the complainant and the accused had already entered into compromise, thought it appropriate to grant permission to compound the offence and the conviction and sentence under Section 138 of the Act was annulled. 12. The Apex Court taking into consideration the nature of offence in question and the fact that the complainant and the accused had already entered into compromise, thought it appropriate to grant permission to compound the offence and the conviction and sentence under Section 138 of the Act was annulled. 12. In the instant case also, the complainant appeared personally before the appellate Court on 27.08.2004 while the appeals filed by the petitioner were pending and filed the compromise duly signed by him as well as by the accused petitioner stating therein that the entire cheque money has been received by him and the matter has been compromised between the parties and, therefore, he had no objection if the appeal is allowed and conviction is set aside. Despite the compromise being on record which is evident from the record as well as impugned Judgment s, the appellate Court proceeded to affirm the conviction made by the trial Court and sentenced the petitioner though with little modification. In my view, it was not open for the appellate Court to have ignored the provision of law, more particularly when the offence under Section 138 of the Act has been made compoundable by the Statute under Section 147 of the Act, the appellate Court ought not to have ignored these provisions. In the circumstances, therefore, I am of the view that the appellate Court fell in error in affirming the conviction and sentencing the petitioner for the offence under Section 138 of the Act and, therefore, the order of conviction and sentence cannot be sustained and is liable to be set aside. The petitioner is entitled to be acquitted. 13. In view of the aforesaid discussion, both these revision petitions are allowed. The Judgment s and orders impugned of the trial Court as well as of the appellate Court are set aside. The petitioner is acquitted of the offence under Section 138 of the Act in both these cases.