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2005 DIGILAW 2819 (RAJ)

Kailash Chandra v. State of Rajasthan

2005-10-26

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This criminal revision petition is barred by the period of limitation of 29 days. An application under Section 5 of the Limitation Act, supported by an affidavit, has been filed by the petitioner. Mr. S.G. Ojha, Counsel for the complainant, accepted the notice of the application under Section 5 of the Limitation Act as well as the revision petition. Mr. JPS Chaudhary, Public Prosecutor, appears for the respondent-State. 2. For the reasons mentioned in the application, the delay in filing the revision petition is condoned. The application under Section 5 of the Limitation Act is accordingly disposed of . Let this revision petition be registered at its original number. 3. With the consent of the learned Counsel for the parties, the revision petition is finally heard. 4. By the instant revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, “the Code”), the petitioner has challenged the order dated 15.07.2005 passed by the Additional Sessions Judge, Gulabpura, district Bhilwara (for short, “the Appellate Court” hereinafter) in Criminal Appeal No. 12/2004, by which appeal filed by the petitioner against the order dated 03.03.2004 passed by the Judicial Magistrate, Aasind (for short, “the trial Court” hereinafter) in Criminal Case No. 40/2003, has been dismissed. The trial Court, by its Judgment and order dated 03.03.2004, convicted the petitioner for the offence under Section 138 of the Negotiable Instrument Act, 1881 (for short, “the Act”) and sentenced him to six months simple imprisonment and directed the petitioner to pay a sum of Rs. 65,000/-as compensation to the complainant. 5. The parties have filed a compromise before this Court which has been verified by the Deputy Registrar (Judicial) of this Court on 210.2005. The parties have been identified by their respective Counsel. 6. The offence under Section 138 of the Act is compoundable under Section 147 of the Act. Section 147 of the Act provides that notwithstanding anything contained in the Code, every offence punishable under this Act shall be compoundable. 7. Section 320 of the Code provides compounding of offences. Sub-section (6) of Section 320 of the Code provides that a High Court or Court of Sessions, acting in the exercise of its powers of revision under Section 401 of the Code, may allow any person to compound any offence which such person is competent to compound under this Section. 7. Section 320 of the Code provides compounding of offences. Sub-section (6) of Section 320 of the Code provides that a High Court or Court of Sessions, acting in the exercise of its powers of revision under Section 401 of the Code, may allow any person to compound any offence which such person is competent to compound under this Section. Sub-section (8) of Section 320 of the Code provides that the composition of an offence under this Section shall have an effect of an acquittal of the accused with whom the offence has been compounded. 8. Keeping in view the aforesaid provisions of law, the non-petitioner No. 2 permitted to compound the offence. The complainant has compounded the offence by filing a compromise which has been verified by the Deputy Registrar (Judicial) of this Court. 9. Consequently, the revision petition is allowed. The impugned Judgment and order dated 17.05.2005 passed by the Additional Sessions Judge, Gulabpura in Criminal Appeal No. 12/2004, as also the order dated 03.03.2004 passed by the Judicial Magistrate, Aasind, district Bhilwara, in Criminal Case No. 40/2003 are hereby set aside. Petitioner Kailash Chandra alias Mitthu Das S/o Badri Dass Vaishnava is acquitted of the offence under Section 138 of the Negotiable Instrument Act, 1881 being compounded by the complainant/non-petitioner No. 2. After conviction by the Appellate Court, the petitioner has not surrendered and, therefore, he is not in custody. Since, the petitioner has been acquitted, he need not to surrender.