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2011 DIGILAW 4 (ORI)

Satrughan Patra v. Baikuntha Nath Mohapatra

2011-01-04

I.MAHANTY

body2011
JUDGMENT I. MAHANTY, J. — In this application under Section 401 Cr.P.C., the accused-petitioner has sought to challenge the judgment dated 2.9.2009 passed by the learned J.M.F.C., Bhubaneswar in I.C.C. Case No.4174 of 2008 convicting him of an offence under Section 138 of the Negotiable Instrument Act, 1881 and sentencing him to undergo S.I. for three months and to pay compensation of Rs.23,000/- to the complainant within two months from the date of the judgment. Challenge has been further made to dismissal of the petitioner’s Criminal Appeal No.11/75 of 2010/2009 by the learned Ad hoc Addl. Sessions Judge (F.T.C.), Bhubaneswar by his judgment dated 13.8.2010 thereby confirming the order passed against the accused-petitioner in I.C.C. Case No.4174 of 2008. 2.Two affidavits have been filed, one by the petitioner-Satrughan Patra and another, by the complainant-Baikuntha Nath Mohapatra, wherein it is stated that the dispute inter se the parties have been resolved and the petitioner has paid a sum of Rs.23,000/- to the opposite party-complainant. The opposite party-complainant in his affidavit has accepted the aforesaid fact and has noted the fact that he does not want to proceed with the matter any further. In this regard, reference is made to a judgment of the Hon’ble Supreme Court in the case of K.M. Ibrahim v. K.P. Mohammed and Another, (2010) 1 Supreme Court Cases 798, 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 under Section 147 of the Negotiable Instrument 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 deserved to be allowed and the appellant is entitled to an acquittal and as a consequence thereof, the order of conviction and sentences 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 under Section 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.23,000/- which was the subject matter of dispute in the present proceeding. While the petitioner was convicted by the learned J.M.F.C., Bhubaneswar in I.C.C. Case No.4174 of 2008, the accused-petitioner also filed an appeal being Crl. Appeal No.11/75 of 2010/2009 in the Court of the learned Ad hoc Addl. Sessions Judge (F.T.C.), Bhubaneswar, which has been dismissed by judgment dated 13.08.2010. In the present revision the complainant-opposite party has filed an affidavit indicating his satisfaction in settlement of the disputes and receipt of the defaulted amount. In the said affidavit he has also supported the prayer of the accused-petitioner for allowing the revision and setting aside the order of conviction passed against him. 5.On consideration of the facts as noted hereinabove, and the power of this Court to compound the offences arising out of 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 parties to this litigation to compound the offence as provided under Section 147 of the N.I. Act ought to be allowed and that the conviction of the petitioner under Section 138 of the N.I. Act ought to be set aside. 6.Accordingly, the revision is allowed and consequently the order of conviction dated 2.9.2009 passed in I.C.C. Case No.4174 of 2008 and dismissal of Crl. Appeal No.11/75 of 2010/2009 vide judgment dated 13.08.2010 are set aside and the conviction of the petitioner under Section 138 of the said Act is also set aside. Revision allowed.