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2010 DIGILAW 391 (KER)

Beena v. Balakrishnan Nair

2010-06-02

THOMAS P.JOSEPH

body2010
Judgment :- (Petition praying that in the circumstances stated in the affidavit filed therewith the High Court be pleased to direct the Judicial First Class Magistrate Court, Kattakada to accept Annexure-I in the proceedings, C.C.No.30/2003 and pass appropriate order therein. Petition praying that in the circumstances stated therein the High Court be pleased to direct closing up of all the proceedings in S.T.No.825 of 2006 on the file of the Hon’ble Court of the Judicial Magistrate of the 1st Class-II (Mobile), Kottayam, after extending the time granted for deposit of the fine amount, and also to recall the warrant issued against the applicant.) Common Order: Common question of law raised in these petitions is whether after the Revision Petition is finally disposed of by the High Court on merit and the final order is signed it could accept composition entered between the accused and complainant under Section 147 of the Negotiable Instruments Act (for short, “the Act”). 2. Revision petitions arose from conviction and sentence of petitioners for offence punishable under Section 138 of the Act. This Court disposed of the revision petitions on merit as per orders dated 10.06.2009 and 06.08.2009, respectively as per which conviction of petitioners was confirmed but the sentence on them was modified as simple imprisonment till rising of the court and payment of fine as stated in the respective orders. It was also directed that fine if realized shall be given to respondent No.1 as compensation under Section 357(1)(b) of the Code of Criminal Procedure (for short, “the Code”). Now petitioners state that they have settled the case with respondent No.1 by paying the amount to respondent No.1 directly to his satisfaction. In Crl.M.A.No.4554 of 2010 petitioner prays that direction may be given to the learned Judicial First Class Magistrate, Kattakkada to accept Annexure-I (petition to compound the offence) and pass appropriate orders thereon. In Crl.M.A.No.4435 of 2010 petitioner’s prayer is to accept the composition entered between him and respondent No.1 under Section 320 of the Code read with Section 147 of the Act. Learned counsel for petitioners contend that notwithstanding that revision petitions were finally disposed of by this Court it is within the power of this Court invoking Section 482 of the Code and 147 of the Act to accept composition entered between the parties and pass appropriate orders or issue appropriate direction to the learned magistrate to accept the composition. Learned counsel for petitioners contend that notwithstanding that revision petitions were finally disposed of by this Court it is within the power of this Court invoking Section 482 of the Code and 147 of the Act to accept composition entered between the parties and pass appropriate orders or issue appropriate direction to the learned magistrate to accept the composition. Learned counsel rely on the decisions of the Supreme Court in Ibrahim K.M. v. K.P. Mohammed and another (2010 (1) KHC 190) and Domodar S. Prabhu v. Sayed Babalal H. (2010 (2) KHC 428). Reliance is also placed on the commentaries on Negotiable Instruments Act, 1881 by Sengupta at page No.1280 where the author has stated that even after conclusion of all proceedings and while the drawer is undergoing sentence of imprisonment, the case (for offence under Section 138 of the Act) can be compounded and that there is no formal embargo in doing so. The author has placed reliance on the decision of a learned Single Judge of Gujarat High Court in Kripal Singh v. Balvinder (2004 Cr.L.J 3786) where the learned Single Judge said, “So the parties, in reference to offence under section 138, N.I.Act read with section 147 of the said Act are at liberty to compound the matter at any stage even after the dismissal of the revision application. Even a convict undergoing imprisonment 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 N.I.Act, can compound the matter. …….” 3. I stated that revision petitions preferred by petitioners arising from judgment of appellate courts have been disposed of by this Court finally on the respective dates aforesaid confirming conviction but modifying the sentence to simple imprisonment till rising of the court and payment of fine as referred to in the respective orders with a rider that fine if realized shall be paid to respondent No.1 as provided under Section 357(1) (b) of the Code. The question for consideration is whether this Court having become functus officio so far as revision petitions are concerned could accept the composition or issue direction to the learned Magistrate to accept composition entered after disposal of the revision petitions. The question for consideration is whether this Court having become functus officio so far as revision petitions are concerned could accept the composition or issue direction to the learned Magistrate to accept composition entered after disposal of the revision petitions. In Ibrahim K.M. v. K.P. Mohammed and another (supra) on which reliance is placed by learned counsel for petitioners it was held that Section 147 of the Act has overriding effect over provisions of Code relating to compounding of offences. (emphasis supplied). Question considered in that case was whether in view of Section 320(9) of the Code criminal courts could accept composition of offence under Section 138 of the Act. The Supreme Court answered the question in affirmative, that Section 147 of the Act has overriding effect over the provisions of the Code relating to composition of offences, ie. Section 320(9) of the Code. The other decision relied on by the learned counsel is Damodar S. Prabhu v. Sayed Babalal H. (supra). The decision did not address the issue regarding composition of offence under Section 138 of the Act after the appeal or revision is disposed of by appropriate forum on merit. That decision only referred to the issue regarding composition of offence under Section 147 of the Act at various stages of the proceedings and prescribed guidelines for accepting such composition. It was also held that notwithstanding Section 320(9) of the Code, offence under Section 138 of the Act is compoundable as Section 147 starts with a non-obstante clause and that provision was subsequently incorporated in the Act by an amendment. It is true that in paragraph No.13 of Ibrahim K.M. v. K.P. Mohammed and another the Supreme Court observed, - “It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution”. That was a case where application to compound the offence was preferred before the Supreme Court invoking power and Article 136 of the Constitution after appeal was disposed of by the appellate forum. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution”. That was a case where application to compound the offence was preferred before the Supreme Court invoking power and Article 136 of the Constitution after appeal was disposed of by the appellate forum. The Supreme Court observed that it could entertain the petition to compound the offence. What is stated in paragraph No.13 of the decision cannot be understood as meaning that the appellate forum could entertain petition to compound the offence even after it became functus officio by disposing of the appeal particularly as the appellate forum was not invested with any inherent power as in the case of High Court. It is pertinent to note that neither of the decisions relied on by learned counsel referred to the application of Section 362 of the Code when the appeal or revision has been finally disposed of by appellate or revisional court and the judgment/final order is signed. Section 362 of the Code states that except as otherwise provided by the Code or by any other law for the time being in force no court when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. In otherwords as per Section 362 of the Code a review of judgment or final order once it is signed is possible only for the limited purpose of correcting a clerical or arithmetical error unless otherwise provided by the Code or by any law for the time being in force. No doubt, Section 482 of the Code saves inherent power of the High Court but that power cannot be used to overcome an express bar created by the Code. A Bench of the Supreme Court consisting of three Judges has held in Sankatha Singh and others v. State of Uttar Pradesh (AIR 1962 SC 1208) that inherent powers cannot be exercised to do what the Code specifically prohibits the court from doing. A Bench of the Supreme Court consisting of three Judges has held in Sankatha Singh and others v. State of Uttar Pradesh (AIR 1962 SC 1208) that inherent powers cannot be exercised to do what the Code specifically prohibits the court from doing. There ofcourse question considered was whether once the appellate court disposed of the appeal on merit it could review the judgment after it was signed even invoking the power under Section 424 of the Code (corresponding to Section 387 of the present Code) in view of the bar under Section 369 of the old Code (corresponding to Section 362 of the present Code). It was held that appellate court has no power to review or restore an appeal which has been disposed of and that the Sessions Judge cannot set aside his first order passed in the appeal dismissing the appeal when neither the appellant or counsel appeared and seek rehearing of the appeal. Section 369 read with Section 424 of the (old) Code made it clear that appellate court has no power to alter or review judgment once signed except for the purpose of correcting a clerical error. Even if it is assumed that Sessions Judge could exercise inherent powers, he could not re-open the case when the Code specifically prohibited the altering or review of its order by a court. In Mohd. Yaseen v. State of U.P. ((2007) 7 SCC 49) revision petition was disposed of finally on merit by the High Court and after it was signed there was an application for review. The Supreme Court held that the High Court rightly took the view that the application under Section 482 of the Code was not maintainable. Reference was made to Section 362 of the Code. In R. Rajeshwari v. H.N. Jagadish ((2008) 4 SCC 82) it was held, referring to Sections 362 and 482 of the Code that in view of the specific bar created under Section 362 of the Code in regard to exercise of jurisdiction of High Court to review its own order, that ordinarily exercise of jurisdiction under Section 482 of the Code would be unwarranted. Only in some rare cases, High Court may do so where a judgment has been obtained from it by practicing fraud. Only in some rare cases, High Court may do so where a judgment has been obtained from it by practicing fraud. In otherwords, bar of Section 362 of the Code was relaxed only to the extent of reconsideration of a judgment obtained by a party by fraud (where the judgment itself is a nullity). Yet another decision of the Supreme Court, State rep. by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & others (AIR 2009 SC 46) has also held referring to the decision in Sankatha Singh and others v. State of Uttar Pradesh (supra) that Section 482 of the Code enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of process of any court but such inherent power is controlled by express provisions of the Code and that High Court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction. Section 362 of the Code prohibits reopening of a judgment or final order except for correction of clerical or arithmetical errors. These decisions inform me that once the revision has been disposed of finally on merit and the final order is signed the High Court cannot review such final order even invoking power under Section 482 of the Code except for the limited purpose stated in Section 362 of the Code or when judgment of the court has been obtained by fraud. Acceptance of composition which has the effect of acquittal of accused after the case is finally disposed of and the judgment or final order is signed amounts to review of the judgment or final order and re-opening of the case. The decisions relied on by the learned counsel do not support the contention that even after this Court disposed of the revision petitions on merit it could, overlooking bar under Section 362 of the Code accept composition under Section 147 of the Act and record acquittal of petitioners. 4. Question whether composition can be accepted after final disposal of the revision petition on merit came up for consideration before a Division Bench of this Court in Sudheer Kumar v. Kunhiraman (2008 (1) KLT 168). 4. Question whether composition can be accepted after final disposal of the revision petition on merit came up for consideration before a Division Bench of this Court in Sudheer Kumar v. Kunhiraman (2008 (1) KLT 168). The Division Bench has held that once conviction has become final (in the sense that the appeal or revision has already been disposed of finally) question of accepting composition even under Section 147 of the Code did not arise. In the above circumstances the view taken in Kripal Singh v. Balvinder (supra) cannot be accepted. In the light of the above decisions, contention of learned counsel for petitioners that notwithstanding the final disposal of the revision petition by this Court and the final order having been signed it is within the power of this Court under Section 482 of the Code to accept composition entered between parties cannot be accepted. These petitions are therefore not maintainable. 5. That however, cannot be the end of the matter so far as grievance of petitioners is concerned. According to the petitioners they have already paid amount payable to respondent No.1. That is revealed from petitions filed by them in this Court. True, by the final orders disposing of revision petitions this Court while modifying the sentence as simple imprisonment till rising of the court sentenced petitioners to payment of fine which is to be deposited in the court concerned and directed that fine if realized will be paid to respondent No.1 under Section 357(1)(b) of the Code. The proper procedure for petitioners was to deposit fine in the court concerned so that such court would pay the said amount to respondent No.1 as provided under Section 357(1)(b) of the Code after making necessary entries in the fine register of that court. Now that petitioners have paid the amount to respondent No.1 to their satisfaction, what is required is only to make necessary entries in the fine register that amount of fine is realized and paid to respondent No.1. Now that petitioners have paid the amount to respondent No.1 to their satisfaction, what is required is only to make necessary entries in the fine register that amount of fine is realized and paid to respondent No.1. In the particular facts and circumstances of these cases I direct the learned Magistrate that if respondent No.1 filed a statement within one month from this day in the court concerned through his counsel in that court acknowledging receipt of amount of fine ordered to be paid as per final order disposing of the revision petitions, learned Magistrate will accept that as sufficient compliance of direction contained in the orders disposing of the revision petitions and make necessary entries in the fine register as if fine is realized and paid to respondent No.1 and close the matter accordingly. The warrant of arrest if any issued against petitioners will stand in abeyance during the said period of one month or statement is filed in the court concerned and necessary entry in the fine register is made, whichever is earlier. These petitions are disposed of as above.