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2011 DIGILAW 266 (ORI)

DEBABRATA DASH v. MALAYA BHOWMICK

2011-04-29

I.MAHANTY

body2011
JUDGMENT : I. Mahanty, J. - In this revision petition, the accused-petitioner has sought to challenge the judgment dated 24.2.2007 passed by the learned S.D.J.M., Bhubaneshwar in I.C.C. Case No. 4318 of 2004 convicting him u/s 138 of the Negotiable Instruments Act, 1881 and sentencing him to undergo S.I. for a period of three months and to pay a compensation of Rs. 1,50,000 to the complainant. Challenge has been further made to dismissal of the petitioner's Criminal Appeal No. 10/10/2-8/07 by the learned Ad hoc Addl. Sessions Judge (F.T.C.3), Bhubaneswar by his judgment dated 21.5.2008 thereby confirming the order passed against the accused-petitioner in I.C.C. Case No. 4318 of 2004. A memorandum has been filed by the learned Counsel for opp. party, wherein it is stated that the dispute inter se the parties has been resolved and the petitioner has paid a sum of Rs. 1,50,000 in three installments to the opp. party-complainant and has no object to the disposal of the case in terms of the settlement of disputes. 2. In this regard, reference is made to a judgment of the Hon'ble Supreme Court in the case of K.M. Ibrahim Vs. K.P. Mohammed and Another, wherein a Division Bench of the Hon'ble Supreme Court headed by Hon'ble Justice Altamas Kabir came to hold that, an application for compounding the offence u/s 147 of the Negotiable Instruments Act, can be made even at the appellate stage and even in a proceeding under Article 136 of the Constitution. 3. The Hon'ble Supreme Court took into account the scope and ambit of Section 147 of the N.I. Act and held that, once a matter has been compromised between the parties and payment has been made in full and final settlement of their dues, the appeal deserves to be allowed and the appellant is entitled to an acquittal and as a consequence thereof, the order of conviction and sentence recorded by all the Courts can be permitted to be set aside and the appellant ought to be acquitted of the charges levelled against him. It is further held in paragraph 14 of the aforesaid judgment that Section 147 of the N.I. Act does not bar the parties from compounding an offence u/s 138 of N.I. Act even at the appellate stage of proceeding. For better appreciation, Section 147 of the N.I. Act is quoted herein below: 147. It is further held in paragraph 14 of the aforesaid judgment that Section 147 of the N.I. Act does not bar the parties from compounding an offence u/s 138 of N.I. Act even at the appellate stage of proceeding. For better appreciation, Section 147 of the N.I. Act is quoted herein below: 147. Offences to be compoundable--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) every offence punishable under this Act shall be compoundable. 4. In the facts of the present case, it appears that the accused-petitioner had issued a cheque value of Rs. 1,20,000 which was the subject matter of dispute in the present proceeding. While the petitioner was convicted by the learned S.D. J.M., Bhubhaneswar in I.C.C. Case No. 4318 of 2004, the accused-petitioner also filed an appeal being Criminal Appeal No. 10/10/2-08/07 which was dismissed by the learned ad hoc Addl. Sessions Judge (F.T.C. 3), Bhubaneswar, by judgment dated 21.5.2008. In the present revision the complainant- opp. party has filed a memo indicating his satisfaction in full and final settlement of the dispute and receipt of the defaulted amount. In the said memorandum he has also supported the prayer of the accused-petitioner for allowing the revision and setting aside the order of conviction and sentence passed against him. 5. On consideration and sentence passed hereinabove, and exercise of power of this Court to compound the offences arising out of the N.I. Act by virtue of Section 147 thereof, I am of the considered view that, this is a fit case where the prayer of the petitioner to compound the offence as provided u/s 147 of the N.I. Act ought to be allowed and that the order of conviction and sentence passed against the petitioner u/s 138 of the N.I. Act ought to be set aside. Accordingly, the revision is allowed and consequently the order of conviction and sentence dated 24.2.2007 passed by the learned SDJM, Bhubaneswar in I.C.C. Case No. 4318 of 2004 and confirmation of the same in Crl. Appeal No. 10/ 10/2-08/07 vide judgment dated 21.5.2008 by the learned ad hoc Additional Sessions Judge. F.T.C-3, Bhubaneswar are set aside. Final Result : Allowed