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2010 DIGILAW 175 (GUJ)

Pinal Navnitbhai Patel v. State of Gujarat

2010-03-30

JAYANT PATEL

body2010
Judgment Jayant Patel, J.—The short facts of the case appears to be that the original complainant-Respondent No. 2 herein filed complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘Act’) being Criminal Case No. 28159/99 before the learned Magistrate. At the end of the trial before the learned Magistrate, the matter resulted into conviction and the learned Magistrate imposed the sentence of 1 month S.I. with the fine of Rs. 3,000/- vide Judgement and Order dated 30.08.2001. The matter was carried in appeal by the petitioner herein being Criminal Appeal No. 21/01 before the learned Sessions Judge. It is the case of the petitioner herein that the matter was compromised inasmuch as the amount of Rs. 50,000/- was paid and on behalf of original complainant and the accused it was declared before the learned Sessions Judge that the matter is compromised and therefore, nothing is remaining outstanding and the order for imposition of sentence be set aside and the amount of penalty be refunded. It appears that the said compromise was signed by the learned advocates of the respective party and the same was submitted on 10.05.2002. However, the attention of the learned Sessions Judge was not drawn and the learned Sessions Judge passed the order on merits of the appeal and vide Judgement dated 20.12.2002, the learned Sessions Judge dismissed the appeal. It is under these circumstances, the present petition before this Court. 2. It appears that pending the petition, the report was called for from the learned Sessions Judge and the factum of compromise tendered to the Court in the proceedings of the appeal and the declaration by the respective parties in not in dispute and on the contrary, as per the report of the learned Sessions Judge, it was not brought to the notice by either side that the amount is paid and nothing remains. Under these circumstances, the aspect of compromise and the declaration made by the respective parties remains undisputed. 3. The next aspect which may be required to be considered is permitting compromise at this stage based on the declaration filed before the learned Sessions Judge and the setting aside of the final order passed by the learned Magistrate and its confirmation thereof in the appeal by the learned Sessions Judge. 3. The next aspect which may be required to be considered is permitting compromise at this stage based on the declaration filed before the learned Sessions Judge and the setting aside of the final order passed by the learned Magistrate and its confirmation thereof in the appeal by the learned Sessions Judge. As such, on the said aspects, the matter is covered by the decision of this Court in the case of Kirpalsingh Pratapsingh vs. Salvinder Kaur Hardisingh Lobhana, reported at 2004 (2) GLH 544 the relevant observation in the said decision can be extracted for ready reference from Paras 27 to 30 as under: “27. The country is under the process of and progress towards globalization. So the intention of the legislature and object of enacting “Banking”, Public Financial Institutions and the Negotiable Instrument Laws (Amended Act) 1988 and subsequent enactment i.e. Negotiable Instruments (Amendment & Miscellaneous Provisions) Act 2002 leads this Court to a conclusion that the offence made punishable under Section 138 of NI Act is not only an offence qua property but it is also of the nature of an economic offence, though not covered in the list of statutes enacted in reference to Section 468 of Cr.P.C. referred to hereinabove. So the parties, in reference to offence under Section 138 NI Act read with Section 147 of the said Act are liberty to compound matter at any stage even after the dismissal of the application. Even a convict undergoingimprisonment with the liability to pay the amount of fine imposed by the Court and/or under an obligation to pay the amount of compensation if awarded, as per the scheme of NI Act, can compound the matter. The complainant i.e. person or persons affected can pray to the Court that the accused, on compounding of the offence may be released by invoking jurisdiction of this Court under Section 482 Cr.P.C. read with Article 226 of the Constitution of India. 28(i). If such interpretation is made that even after conclusion of all the proceedings, a criminal case can be compounded then whether it would open pandora box and would bring multiple proceedings ? 28(i). If such interpretation is made that even after conclusion of all the proceedings, a criminal case can be compounded then whether it would open pandora box and would bring multiple proceedings ? One also can pause a question that such interpretation of law by the Court and exercise of inherent powers, would take the accused-defaulter to fight out the litigation till the last stage and thereafter the defaulter accused can ask to accept compromise in the matter and in the circumstances whether this would be a healthy situation when the society is craving for and trying to carve out a value based life to one and all ? These questions are all ifs and buts. Courts of this country have efficiently dealt with such hypothetical situations. This and such other contingencies can be taken care of if the purpose of enacting the law is to be achieved in true perspective. When a substantive petition is brought in such a situation or contingency, then the Court at the relevant point of time can positively insist that either the complainant or the person authorised by the complainant victim of criminal wrong should be a party petitioner to such petition or atleast a party respondent supporting the say of the petitioner that the grievance is settled to the satisfaction and the convict may be either acquitted or released from the prison or any other appropriate order may be passed. 28(ii). Technically speaking, in such an eventuality, the fine imposed, if not paid to the State or the same is required to be refunded to the person released or acquitted on compounding the offence, then the Court while passing orders dealing with such petitions, the parties can be fasten with the liability of costs for the contingency created by them in protracting the litigation and not compounding the offence at appropriate stage. Thus, at appropriate stage, the Court can take care of the fact situation while dealing with such petitions/revisions pending in the Civil Court qua the same transaction. 29. The Court is aware about one accepted principle of law and the principle governing the concept of judicial restrain that unless the Court is asked to answer a particular point, normally the Court should not venture to deal with the points which are not raised by any of the parties. 29. The Court is aware about one accepted principle of law and the principle governing the concept of judicial restrain that unless the Court is asked to answer a particular point, normally the Court should not venture to deal with the points which are not raised by any of the parties. But when the Court was dealing with the said two Special Criminal Revision Application certain queries were put during hearing to the learned counsel appearing for the parties and the points discussed were a matter of discussion in reference to Sub-section 6 of Section 320 Cr.P.C., Section 147 of NI Act and the jurisdiction of this Court under Section 482 of Cr.P.C read with Article 226 of the Constitution of India. The Court is also aware of other principle of law that when a thing is required to be done in a particular way { provided under a law or rules framed there under} then it should be done in that manner only. But when the jurisdiction of this Court being very wide under Article 226 of the Constitution of India read with third part of Section 482 Cr.P.C. the Court can bring legal resolution. If all parties are asked to approach the Apex Court then, what will be situation, is a question which is required to be considered in the back ground of another accepted progressive and pragmatic principle accepted by our courts that, if possible, the parties should be provided justice at the door step. The phrase “justice at the door step” has taken this Court to think and reach to a conclusion that it can be considered and looked into as one of such special circumstances especially when grant of previous permission to enter into compromise for the purpose of compounding offence is not made a condition precedent in Section 147 of NI Act. Of course, the parties compounding the offence under Section 138 of NI Act obviously are bound to satisfy the conscious of the Court on facts, when the jurisdiction under Article 226 of the Constitution of India read with Section 482 Cr.P.C. is invoked with readiness and willingness to pay the reasonable amount of costs, if awarded while dealing with such petitions. 30. The Court is inclined to hold accordingly only because there is no formal embargo in Section 147 NI Act. 30. The Court is inclined to hold accordingly only because there is no formal embargo in Section 147 NI Act. So this principle would not help any convict in any other law where other applicable independent provisions are existing as the offence punishable under Section 138 of the NI Act is distinctly different from the normal offences made punishable under Chapter XVII of IPC (i.e. the offences qua property)” 4. The same situation should prevail in the present case inasmuch as when the matter is already compromised and the amount is already paid, there is no reason for not to apply the principles as referred to hereinabove for putting an end to the litigation. 5. Hence, in view of the aforesaid, as the matter is compromised and the compromise purshis was already submitted before the learned Sessions Judge, the Judgement and the Order passed by the learned Magistrate dated 30.08.2001 in Criminal Case No. 28158/99 under Section 138 of the Act and its confirmation thereof in Criminal Appeal No. 21/01 by the learned Sessions Judge vide Judgement dated 20.12.2002 are set aside. The amount of penalty deposited by the petitioner shall be refunded to the petitioner by the concerned Court. 6. Petition is allowed to the aforesaid extent. Rule made absolute accordingly. P P P P P