Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 2010 (RAJ)

Phool Chand Saraogi v. State of Rajasthan

2008-08-26

G.S.SARRAF

body2008
ORDER:- This criminal misc. petition under Section 482. Cr. P.C. is directed against the order dated 14-8c2007 (wrongly mentioned as 14-8-2006) passed by Additional Chief Judicial Magistrate No.8, Jaipur City, Jaipur in criminal case No. 339/2006 whereby the application filed by the petitioner under Section 147 of the Negotiable 5 Instruments Act (hereinafter referred to as the Act) has been dismissed. 2. In the criminal complaint filed by the ~ respondent No.2 it is alleged that the petitioner issued a cheque bearing number 764959 dated 29-11-2004 for Rs. 74.82.684/- in favour of the respondent No.2, drawn on The Bank of Rajasthan Ltd. Madrampura Branch which came to be dishonoured on account of insufficient funds in the bank account of the petitioner. The cheque in question is alleged to have been issued by the petitioner for repayment of the loan taken by him from the respondent No.2. The complaint is pending trial in the Court of Additional Chief Judicial Magistrate No.8, Jaipur City. Jaipur. The petitioner filed an application in the trial Court under Section 147 of the Act stating therein that with respect to the cheque in question he has already deposited Rs. 20.79.262/- in the competent Court in compliance of the order passed by High Court in first appeal filed by the petitioner against a judgment and decree of a Civil Court and the remaining amount as per the above order will also be paid by the petitioner in near future and. Therefore, the offence under Section 138 of the Act stands compounded and the complaint filed by the respondent No.2 deserves to be dismissed. The trial Court by the impugned order has dismissed this application. Aggrieved the petitioner has fi1ed this misc. petition. 3. Heard learned counsel for the petitioner and learned counsel for the respondent No.2. 4. Learned counsel for the petitioner has contended that when the petitioner has already ventured to make payment of the amount in question the offence under Section 38 of the Act virtually stands compounded under Section 147 of the Act and if the case is allowed to continue then it will be sheer exercise in futility. 4. Learned counsel for the petitioner has contended that when the petitioner has already ventured to make payment of the amount in question the offence under Section 38 of the Act virtually stands compounded under Section 147 of the Act and if the case is allowed to continue then it will be sheer exercise in futility. He has contended that Section 147 of the Act lays down a mandate for compounding of the offence and the word "show has been used in it and, therefore, in the circumstances of the present case the proceedings in the criminal complaint deserve to be quashed. He has placed reliance on (1980) 1 SCC 63 (sic), 1968 CAR 259 (SC) and AIR 1965 SC 87 : 1965 (1) Cri W 120. 5. There is no doubt that the offence under Section 138 of the Act is compoundable under Section 147 of the Act. However, a compromise requires an agreement between the litigating parties and if one party is not agreeable then there can be no compromise. In the present case the complain ant respondent No.2 is not willing and ready lo, compromise and. Therefore, in such situation it cannot be said that the matter stands compounded. If the complaint is not agreeable to the compromise then the proceedings cannot be quashed on the ground of payment or deposit of the amount in the Court. Once an offence is committed under Section 138 of the Act any payment matter subsequently thereto will not absolve the accused of the criminal offence though try, the matter of awarding of sentence it may have some effect on the Court trying the offence. Therefore. I do not find any merit in the contention raised by learned counsel for the petitioner. I am supported by 2001 Criminal Law, Reporter (SC) 127: 2001 Cri W 708. 6. Having regard to the above discussion. I am clearly of the opinion that the impugned order does not suffer from any illegality or impropriety which may warrant interference by this Court to prevent abuse of the process of the Court. 7. Consequently, the petition fails and it stands dismissed accordingly. Petition dismissed.