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2013 DIGILAW 1693 (RAJ)

Moolchand v. Yashwant Kumar Tank

2013-09-23

NARENDRA KUMAR JAIN II

body2013
Hon'ble JAIN-II, J.—Instant Misc. Petition has been filed under Section 482 Cr.P.C. by the accused-petitioners being aggrieved by the order dated 22.01.2013 passed by the Learned Sessions Judge, Tonk, Rajasthan(hereinafter referred to as ‘the Revisional Court’) in Criminal Revision No.69/2013, whereby the learned Revisional Court has dismissed the revision petition filed by the petitioners and affirmed the order dated 28.06.2012 passed by the Learned Chief Judicial Magistrate, Tonk(hereinafter referred to as ‘the Trial Court’) in Criminal Case No. 81/2011, whereby the application filed by the petitioners-accused for depositing the entire cheque amount along with interest and to drop the proceedings was rejected. 2. Brief facts of the case are that on 28.09.2010, a complaint was filed by the Respondent No. 1 in Trial Court under Section 138 of the Negotiable Instruments Act(hereinafter referred to as ‘the Act’). During pendency of the proceedings, on 16.11.2011, accused-petitioners moved an application stating therein that the petitioners are ready to deposit the entire cheque amount along with interest and the matter be decided accordingly. The said application was dismissed by the Trial Court vide impugned order dated 28.06.2012. Feeling aggrieved by the same, the petitioners filed revision petition before the Revisional Court and that too was also dismissed by the Revisional Court vide impugned order dated 22.01.2013. Feeling aggrieved by the orders passed by both the Courts below the petitioners have filed this criminal misc. petition. 3. Learned counsel for the accused-petitioners submitted that the orders passed by both the Court below are patently illegal and erroneous and deserve to be set aside. Learned Courts below have passed the orders without considering the true facts and circumstances of the case and also the intention of petitioners and the orders deserve to be set aside. The petitioner had given a cheque bearing No.027642 for an amount of Rs.1,20,000/- (Rupees One Lakh and Twenty Thousand) as a security and provisions of Section 138 of the Act were not applicable and no liability can be posted upon the petitioners. The Petitioners had submitted an application before the Trial Court for depositing the cheque amount along with the interest with the intention to settle the dispute between the parties, but both the Courts below have wrongly dismissed the said application on the ground that the petitioners should also settle the dispute regarding the cheque issued by the petitioners' son. The Petitioners had submitted an application before the Trial Court for depositing the cheque amount along with the interest with the intention to settle the dispute between the parties, but both the Courts below have wrongly dismissed the said application on the ground that the petitioners should also settle the dispute regarding the cheque issued by the petitioners' son. So the learned Trial Court has arbitrarily dismissed the application dated 16.11.2011 filed by the petitioners as well as learned Revisional Court has also dismissed the revision petition filed by the petitioners. 4. Learned counsel for the accused-petitioners further submitted that during pendency of the trial, the accused as per the directions and guidelines issued by the Hon'ble Apex Court in the case of Damodar S. Prabhu vs. Sayed Babalal H., reported in WLC(SC) 2010 (1)(Cr.) 745: III (2010) BC 110(SC), submitted an application before the trial court and also offered to deposit the cheque amount for the purpose of compounding of the offence, but the learned Trial Court has illegally rejected the said application and the revision petition filed against said rejection order has also been dismissed by the Revisional Court. Learned counsel for the petitioners submitted that orders passed by both the Courts below are absolutely illegal and they have been passed in total disregard of the directions and guidelines issued by the Hon'ble Supreme Court in the case of Damodar S. Prabhu(Supra). Thus, learned counsel for the petitioners submits that the orders passed by the learned Courts below be set aside and learned Trial Court be directed to compound the offence and drop the proceedings. 5. Learned counsel for the Respondent No. 1 vehemently opposed the prayer of learned counsel for the accused-petitioners and submitted that without the consent of Respondent No. 1-complainant, the offence cannot be compounded and learned both the Courts below have rightly passed the impugned orders. There is no illegality or perversity in the orders passed by both the Courts below and this misc. petition filed by the accused-petitioners deserves to be dismissed. 6. Learned Public Prosecutor appearing on behalf of the Respondent No. 2-State has left the matter to discretion of the Court. 7. There is no illegality or perversity in the orders passed by both the Courts below and this misc. petition filed by the accused-petitioners deserves to be dismissed. 6. Learned Public Prosecutor appearing on behalf of the Respondent No. 2-State has left the matter to discretion of the Court. 7. I have heard learned counsel for the parties and perused the orders passed by both the Courts below and considered the arguments advanced by learned counsel for the parties at Bar and the dictum of their Lordship in the case of Damodar S. Prabhu(Supra). 8. The Hon'ble Apex Court in the case of Damodar S. Prabhu(Supra) has observed as under: “15. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:- The Guidelines (i) In the circumstances, it is proposed as follows:- (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the Court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. (c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate's Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority. 16. .................... 17. We are also conscious of the view that the judicial endorsement of the above quoted guidelines could be seen as an act of judicial law-making and therefore an intrusion into the legislative domain. It must be kept in mind that Sec. 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. We have already explained that the scheme contemplated under Section 320 of the CrPC cannot be followed in the strict sense. In view of the legislative vacuum, we see no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act. The graded scheme for imposing costs is a means to encourage compounding at an early stage of litigation. In the status quo, valuable time of the Court is spent on the trial of these cases and the parties are not liable to pay any Court fee since the proceedings are governed by the Code of Criminal Procedure, even though the impact of the offence is largely confined to the private parties. Even though the imposition of costs by the competent Court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity. Even though the imposition of costs by the competent Court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity. The competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end. Even in the past, this Court has used its power to do complete justice under Article 142 of the Constitution to frame guidelines in relation to subject-matter where there was a legislative vacuum.” 9. In the opinion of this court, it is true that the Hon'ble Apex Court had laid down above guidelines in the case of Damodar S. Prabhu (supra) in relation to the matter in which the compromise application has been filed in respect of offence under the provisions of the Negotiable Instruments Act and the matter has to be dealt with accordingly, but nowhere in the said judgment, it has been mentioned that even if the application for compromise is contes-ted, then too, the Court is under an obligation to compound the offence. 10. The Hon'ble Apex Court has held that the provisions of Section 320(9) Cr.P.C. are not applicable to the procedure of compounding the offence under Section 138 of the Act, but the other provisions, mentioned in the said provision, have not been excluded from applicability. 11. In my opinion, unless and until the person aggrieved of the offence agrees to application for compounding the offence, the Court is not under an obligation to accept the same, as has been mentioned in the orders impug-ned. In the present case, the complainant was not agreeable to the application for compounding the offence filed by the petitioners-accused for offence u/S.138 of the Act. Thus, if the complainant is not agreeable to the application for compromise, then he can very well persue his complaint for the purpose of seeking sentence as provided by the law. This court is of the firm opinion that merely because the accused has filed an application for compromise and compounding of the offence, the Trial Court is not under an obligation to accept the same, unless agreed to or subscribed to by the complainant. 12. This court is of the firm opinion that merely because the accused has filed an application for compromise and compounding of the offence, the Trial Court is not under an obligation to accept the same, unless agreed to or subscribed to by the complainant. 12. The Hon'ble Apex Court in the case of Damodar S. Prabhu (supra) has not observed or held that the application for compromise has to be accepted even if the same is filed and not accepted by the complainant. The Hon'ble Apex Court while laying down the guidelines, in the manner in which the compounding applications are to be dealt with, has laid down in guideline (i)(a) that directions can be given that the Writ of Summons are suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the Court without imposing any costs on the accused. Thus, the Hon'ble Apex Court consciously used the word “May” in the aforesaid judgment. Had the intention of the Hon'ble Apex Court been to contrary interpretation of direction that the compounding applications being filed has to accepted without the consent or acceptance of the complainant, then the word “Shall” would have been used instead of the word “May”. 13. In the case of Rajneesh Aggarwal vs. Amit J. Bhalla, reported in (2001) 1 SCC 631 : AIR 2001 SC 518 , the Hon'ble Apex Court while considering the similar issue has observed as under: “7. So far as the question of deposit of the money during the pendency of these appeals is concerned, we may state that in course of hearing the parties wanted to settle the matter in Court and it is in that connection, to prove the bona fides, the respondent deposited the amount covered under all the three cheques in the Court, but the complainant's counsel insisted that if there is going to be a settlement, then all the pending cases between the parties should be settled, which was, however, not agreed to by the respondent and, therefore, the matter could not be settled. So far as the criminal complaint is concerned, once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of sentence, it may have some effect on the Courts trying the offence. But by no stretch of imagination, a criminal proceeding could be quashed on account of deposit of money in the Court or that an order of quashing of criminal proceeding, which is otherwise unsustainable in law, could be sustained because of the deposit of money in this Court. In this view of the matter, the so-called deposit of money by the respondent in this Court is of no consequence.” 14. In view of the ratio laid down by the Hon'ble Apex Court, it is clear that where the accused is ready for depositing entire cheque amount or has deposited the amount, but still the complainant has not come forward for settlement with the accused, if the trial court comes to the conclusion that the accused is guilty then it is open to the learned Magistrate to take into consideration about the payment made by the accused and also take into consideration the other facts and to show leniency while sentencing the accused. Even the learned Magistrate may apply relevant provisions of Probation of Offenders Act and admonish him subject to Section 361 Cr.P.C. 15. Having considered the submissions made by the learned counsel for the petitioners as well as learned counsel for the Respondent No. 2 and upon careful perusal of the impugned orders passed by both the Courts below, I find no illegality in the orders passed by both the Courts below and the same require no interference by his Court in its inherent jurisdiction under Section 482 Cr.P.C. 16. The misc. petition is, accordingly, dismissed. 17. Stay application also stands dismissed.