Research › Search › Judgment

Punjab High Court · body

2011 DIGILAW 1007 (PNJ)

Jaswinder Singh v. State of Punjab

2011-04-06

NIRMALJIT KAUR

body2011
JUDGMENT Nirmaljit Kaur, J. (Oral) - This is a petition under Section 482 Cr.P.C. for quashing of complaint No. 92 dated 05.12.2005 (P1) titled as Sadhu Ram Sharma v. Jaswinder Singh, order dated 02.09.2008 passed by the trial Court convicting the petitioner to undergo R.I for one year and to pay fine in the sum of Rs.5,000/-as well as order dated 08.01.2011 passed by the Appellate Court dismissing the appeal filed by the present petitioner against the order of his conviction. 2. Brief facts of the case are that respondent No. 2 filed complaint under Section 138 of the Negotiable Instruments Act before the ACJM, Ropar against the petitioner for dishonouring of cheque dated 18.05.2005 for a sum of Rs.1,00,000/-. However, vide order dated 02.09.2008 passed by the trial Court, the present petitioner was convicted and sentenced to under go R.I. for one year and to pay a fine of Rs.5000/-. Thereafter, the petitioner preferred appeal against the order of conviction which was dismissed vide order dated 08.01.2011 passed by the Additional Sessions Judge, Ropar. 3. Learned counsel for the petitioner states that the matter has now been compromised between the parties. 4. Complainant-Sadhu Ram is present Court today, whose identity is verified by the learned counsel for the petitioner. He suffered a statement in Court that the matter has been compromised and as per the compromise, he has already received Rs. 70,000/-on 07.03.2011 and balance amount of Rs.30,000/-has been received in cash in Court. He has also stated that he has no other claim against the present petitioner and has received the aforesaid amount as full and final settlement. He has no objection if the said complaint and subsequent proceedings are quashed. 5. The issue involve herein is as to whether the present petition under Section 482 Cr.P.C can be entertained for compounding of offence after passing of the conviction order and dismissal of the appeal. 5A. Admittedly, no Special Leave Petition has been filed by the petitioner. 6. Hon'ble the Supreme Court in the case of Cochin Hotels Co.(P) Ltd. and others v. Kairali Granites and others reported as 2006(2) RCR (Criminal) 333, in some what similar circumstances, allowed the compounding of offence and set aside the order of conviction and sentence. Similar order was also passed by the Apex Court in the case of K Subramanian v. R Rajathi Rep. Similar order was also passed by the Apex Court in the case of K Subramanian v. R Rajathi Rep. By POAP Kaliappan reported as 2010 (1) RCR (Criminal) 184, in para 5 of the judgment, reads as under:- “The Trial Court by Judgment dated September 21, 2004 convicted the petitioner under Section 138 and sentenced him to Simple Imprisonment for one year and fine of Rs.5000/-in default Simple Imprisonment for 3 months. Feeling aggrieved, the petitioner preferred Criminal Appeal No.107 of 2004 before Sessions Court which was dismissed on 24.12.2004. Thereupon, the petitioner filed Criminal Revision Application No.179 of 2005 before the Madurai Bench of Madras High Court which was dismissed on January 30, 2008. Therefore, the petitioner filed SLP (Crl) No.6974 of 2008 @ CRL.M.P. No.14586 of 2008 which was also dismissed on September 11, 2008. Thereafter, a compromise was entered into and petitioner claims that he has paid Rs.4,52,289/-to respondent. In support of this claim, the petitioner has produced affidavit sworn by him on December 1, 2008. The petitioner has also produced affidavit sworn by P.Kaliappan, Power of Attorney holder of R.Rajathi on December 1, 2008 mentioning that he has received a sum of Rs.4,52,289/-due under the dishonoured cheques in full discharge of the value of cheques and he is not willing to prosecute the petitioner. The Learned Counsel for the petitioner states at the bar that the petitioner was arrested on July 30, 2008 and has undergone the sentence imposed on him by the Trial Court and confirmed by Sessions Court, High Court as well as by this Court. The two affidavits sought to be produced by petitioner as additional documents would indicate that indeed a compromise has taken place between petitioner and the respondent and the respondent has accepted the compromise offered by petitioner pursuant to which he has received a sum of Rs.4,52,289/-. In the affidavit filed by the respondent a prayer is made to permit the petitioner to compound the offence and close the proceedings.” 7. Section 147 of the Negotiable Instruments Act reproduced as under: “147. Offence to be compoundable.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), very offence punishable under this Act shall be compoundable.” 8. Section 147 of the Negotiable Instruments Act reproduced as under: “147. Offence to be compoundable.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), very offence punishable under this Act shall be compoundable.” 8. Reliance has been placed on the judgment passed by this Court in the case of Ritesh Gupta v. State of Punjab and another 2009(3) R.C.R (Criminal) 61, whereby, this Court has relied upon the judgment of Apex Court in the case of O.P Dholakia v. State of Haryana and another, (2000) 1 SCC 762, wherein, the Apex Court was pleased to allow the accused and the complainant to compound an offence under Section 138 of the Act despite conviction and sentence having been held by three Forums. In view of the compromise, the conviction and sentence under Section 138 of the Act was annulled. 9. Hon'ble the Supreme Court in the case of Mrs. Shakuntala Sawhney vs. Mrs. Kaushalya Sawhney and others reported as (1980) 1 SCC 63, held that:- “29. No embargo, be in the shape of Section 320 (9) of the Cr.P.C. or any other such curtailment, can whittle down the power under Section 482 of the Cr.P.C.” 10. Accordingly, in view of the compromise having been arrived at between the parties and statement of the complainant recorded separately stating that he has no objection if the complaint is quashed, the parties are allowed to compound the offence under Section 138 of Negotiable Instruments Act. As such, the present petition is allowed and complaint No. 92 dated 05.12.2005 (P1) titled as Sadhu Ram Sharma v. Jaswinder Singh, order dated 02.09.2008 passed by the trial Court, convicting the petitioner to undergo R.I for one year and to pay fine in the sum of Rs.5,000/-and order dated 08.01.2011 passed by the Appellate Court, dismissing the appeal filed by the present petitioner against the order of his conviction are set aside. Accordingly, the present petitioner is ordered to be released forthwith. 11. Allowed in the aforesaid terms.