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2010 DIGILAW 660 (UTT)

PRAVEEN KUMAR v. STATE OF UTTARANCHAL

2010-09-08

SUDHANSHU DHULIA

body2010
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) : Heard Mr. D.K. Sharma, Advocate for the applicants and Mr. Nandan Arya, AGA for the State of Uttarakhand/respondent No. 1. 2. This application under Section 482 of Cr.P.C. has been filed by the applicants challenging the order dated 26.7.2006 passed by the learned Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar in Criminal Case No. 1556 of 2006 Rajesh Kumar Khanna Vs. Pravin Kumar and another under Section 406, 420 I.P.C. and the entire proceedings in Criminal Case No. 1556 of 2006. 3. Brief facts of the case are that applicant no. 2 is a partner in M/s Tirupati Glass Company situated at A-13/16 Meerut Road, Industrial Area, Ghaziabad and applicant no. 1 is an employee of Tirupati Glass Company. It has been alleged that the complainant/respondent no. 2, who had purchased Glass from the company, issued a Cheque No. 312013 dated 25.11.2003 amounting to Rs. 1,00,000/- drawn on Kashipur Urban Cooperative Bank Ltd., Kashipur Branch. When the said cheque was presented for collection in the Syndicate Bank Rajnagar Branch Ghaziabad, it was returned as dishonoured. After repeated reminders when the complainant/respondent no. 2 did not pay the said amount, the applicant filed a complaint before the court of Additional Chief Judicial Magistrate, Ghaziabad under Section 138 of the Negotiable Instruments Act, 1881 (from hereinafter referred to as the Act). The said complaint was registered as Complaint No. 361 of 2004. On the said complaint, cognizance was taken and summons were issued against respondent no. 2 under Section 138 of the Act. When respondent no. 2 repeatedly did not put appearance, the Additional Chief Judicial Magistrate issued bailable warrants against respondent no. 2 on 12.6.2006. Applicant alleges that as a counter blast, respondent no. 2 filed a complaint on 30.6.2006 against the present applicant under Section 406, 420, 467, 468 and 471 I.P.C., wherein on 26.7.2005 a summoning order was issued against the present applicant. 4. Now a compromise has been reached between the parties and an application (CRMA No. 1015 of 2010) has been filed by the applicant for compounding of the offences. This though was only reached after the criminal proceeding had already been set to motion. 5. 4. Now a compromise has been reached between the parties and an application (CRMA No. 1015 of 2010) has been filed by the applicant for compounding of the offences. This though was only reached after the criminal proceeding had already been set to motion. 5. Section 320 of the Cr.P.C. reads as under :- “(2) The offences punishable under the section of the Indian Penal Code (45 of 1860) specified in the first two columns of the table next following may, with the permission of the court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table.” 6. Under Section 320(2) of Cr.P.C., the Court before whom the prosecution is pending has got powers to compound the offences. Presently the prosecution is pending before the Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar. Both these offences under Sections 420 and 406 I.P.C. are compoundable offence by the permission of the Court. 7. Learned counsel for the applicants has prayed that under the inherent powers of this Court under Section 482 of Cr.P.C. orders for composition of offence be made. 8. Learned counsel for the applicant has cited two cases in support of his contention, which are B.S. Joshi Vs. State of Haryana (2003) 4 SCC 675 and Nikhil Merchant Vs. CBI (2008) 9 SCC 677. 9. In both the aforesaid cases, the matter which are to be decided by the Court is whether under the inherent powers under Section 482 of Cr.P.C. the High Court can pass an order for compounding of offence even though such an offence is specifically mentioned under Section 320 of Cr.P.C. Even if the offence is not compoundable can in the interest of justice an order be passed. 10. 10. All the same relying upon the earlier decision of the Apex Court in B.S. Joshi’s case (supra), in Nikhil Mechant’s case (supra) it has been held that though even the High Court cannot go beyond what has been laid down under Section 320 of Cr.P.C. inasmuch as it should not pass orders for compounding the offences, which are not specifically mentioned under Section 320 of Cr.P.C. yet these statutory limitations can be overcome under the inherent powers of the High Court under Section 482 of Cr.P.C. The difference though would be that in such case the High Court will not order for compounding of an offence but the High Court can order for quashing of the proceedings. 11. Moreover, an application for compounding of offence is filed in the Court where the prosecution is pending. Admittedly, the prosecution is pending before the learned Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar. 12. However, in case the matter is relegated to the lower Court for compounding of offence, the parties will have to face unnecessary hardship, inasmuch, they may have to surrender and may have to apply for bail. Therefore, under the facts and circumstances of the cases and in view of the observations made in Nikhil Merchant’s case, the proceedings in Criminal Case No. 1556 of 2006 are hereby set aside. 13. The instant C-482 application is disposed of in the aforesaid terms. No order as to costs. 14. The Registry is directed to send a copy of this order to the Court concerned for necessary compliance.