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2012 DIGILAW 235 (PNJ)

Gopal Krishan v. Ashok Kumar

2012-02-10

NIRMALJIT KAUR

body2012
Hon’ble Nirmaljit Kaur, J. (Oral) : The present revision petition has been filed against the judgment dated 24.1.2012 passed by learned Additional Sessions Judge, Chandigarh, dismissing the appeal filed by the petitioner against the judgment passed by the Judicial Magistrate Ist Class, Chandigarh, dated 21.4.2008 whereby the petitioner was convicted under Section 138 of the Negotiable Instruments Act and was sentenced to RI for one year and he was directed to pay compenstion of Rs.1,60,000 to the complainant under Section 357(3) Cr.P.C. 2. During the pendency of the revision petition, a compromise has been effected between the petitioner and the complainant. The affidavit of the complainant and the Compromise deed (Annexure P-1 and P-2) have also been placed on record in this regard. 3. The parties are present in the Court alongwith their respective counsel. Learned counsel for the respondent has placed on record the affidavit of respondent admitting the factum of compromise. As per the said affidavit, respondent has no objection if the petitioner is acquitted of the charge and the revision is accordingly allowed. 4. 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. 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. 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.” 5. 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.” 6. 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. 7. Hon’ble the Supreme Court in the case of Shakuntala Sawhney vs. Mrs. Kaushalya Sawhney and others reported as (1980) 1 SCC 63 , held that:- “29. In view of the compromise, the conviction and sentence under Section 138 of the Act was annulled. 7. Hon’ble the Supreme Court in the case of 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.” 8. Accordingly, in view of the compromise having been arrived at between the parties, affidavit of the complainant, the parties are allowed to compound the offence under Section 138 of Negotiable Instruments Act and conviction and sentence awarded by the trial Court vide judgment and order dated 21.4.2008 which was confirmed by the lower Appellate Court vide judgment dated 24.1.2012 is set aside and the petitioner is accordingly acquitted of the aforesaid charge. The petitioner be released forthwith. 9. Disposed of in the aforesaid terms.