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2008 DIGILAW 628 (RAJ)

Santosh Kumari v. State of Rajasthan

2008-02-28

H.R.PANWAR

body2008
JUDGMENT 1. - Both these criminal revision petitions under Section 397 and 401 Criminal Procedure Code have been filed against the order dated 22.02.2008 passed by the Sessions Judge, Hanumangarh (for short, "the Appellate Court" hereinafter) in Criminal Appeals No. 42/ 2005 and 43/2005 respectively, whereby the appeals filed by the petitioners have been partly allowed and while maintaining the conviction of the petitioners for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short the Act') passed by the Additional Chief Judicial Magistrate, Hanumangarh (for short, "the trial Court" hereinafter), Appellate Court reduced the sentence of imprisonment and the fine. 2. Today, complainant-respondent No. 2 Satish Kumar and accused-petitioners appeared before this Court and filed a compromise compounding the offence punishable under Section 138 of the Act. The parties have been identified by their respective counsel. The compromise has been verified by the Registrar (Adm.). Both the compromises are supported by the affidavits of the parties wherein the complainant-respondent No. 2 has stated that he has entered into a compromise with the petitioners and received the money of cheques in question and now there is no dispute between the parties. Likewise, the petitioners have also filed the affidavits stating therein that they have entered into a compromise with the complainant-respondent No. 2 and paid the cheques amount to the complaint-respondent No. 2. 3. Section 147 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable. 4. Section 320 of the Code of Criminal Procedure (for short, "the Code" hereinafter) provides compounding of offence. Sub-section (5) of Section 320 of the Code 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 of which he has been committed or as the case may be, before which the appeal is to be heard. Sub-section (6) of Section 320 of the Code provides that a High Court or Court of Sessions acting in the exercise of its power of revision under Section 401 may allow any person to compound offence which such person is competent to compound under this Section. Sub-section (6) of Section 320 of the Code provides that a High Court or Court of Sessions acting in the exercise of its power of revision under Section 401 may allow any person to compound offence which such person is competent to compound under this Section. Sub-section (7) of Section 320 of the Code provides that no offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence. 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. 5. Thus, sub-section (6) of Section 320 of the Code provides that in exercise of the power of the revision under Section 401, the High Court or the Court of Sessions may allow any person to compound any offence which such person is competent to compound. In view of Section 147 of the Act and sub-section (6) of Section 320 of the Code, the respondent-complainant is permitted to compound the offence under Section 138 of the Act. In view of compounding of the offence by the respondent-complainant who is competent to compound the offence, the judgment and order of the appellate court as well as of the trial court deserve to be set aside and the petitioner deserves to be acquitted. 6. Consequently, the revision petitions are allowed. The impugned judgment and order dated 22.02.2008 passed by the Appellate Court, as also the judgment and order dated 17.02.2005 passed by the trial Court are hereby set-aside. Petitioners Santosh Kumari and Mohan Lal are acquitted, of the offence under Section 138 of the Negotiable Instruments Act, 1881 on compounding the offence. *******