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2013 DIGILAW 62 (ORI)

Debasis Rout v. Manoj Kumar Parida

2013-03-07

B.K.NAYAK

body2013
ORDER Heard learned counsel for the petitioner and learned counsel for the opposite party. This is an application for compounding the offence filed jointly by the petitioner and the opposite party, who are respectively the accused and the complainant in I.C.C. No. 567/2008 of the Court of S.D.J.M., Pan posh, Rourkela. The petitioner having been convicted in that complaint case under Section 138 of N.I. Act was sentenced to undergo simple imprisonment for six months and to pay compensation of Rs. 65,000/- to the opposite party-complainant. The order of conviction and sentence passed by the S.D.J.M. was confirmed by the Additional Sessions Judge, Rourkela, by judgment dated 26.10.2010 passed in Criminal Appeal No. 27 of 2010. Challenging the aforesaid concurrent judgments of both the courts below, the present Revision has been filed. The amount of the dishonoured cheque is Rs. 56,000/-. In the present petition both the parties have averred that at the behest of their well-wishers the matter has been settled out of Court and that the complainant-opposite party has already received the compensation amount of Rs.65,000/- (Rupees sixty-five thousand) and that he has no objection if the order of conviction and sentence of the petitioner is set aside. The offence under Section 138 of N.I. Act is compoundable as per the provision under Section 147 of N.I. Act. Such compounding can be made at any stage of the proceeding, i.e., during appeal, revision or even before the Supreme Court. In the case of Damodar S.Prabhu vs. Sayed Sabalal H. reported in 2010 (II) OLR (SC) 336 : (2010) 46 OCR (SC) 449 while allowing compounding of toile offence under Section 138 of N.I. Act, the Apex Court issued some general guidelines to be followed in the matter of compounding, which are 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 the 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 future would increase to 20% of the cheque amount." Considering the facts and circumstances of the case, the petition for compounding is allowed and the order of conviction and sentence passed by the. Trial Court, as confirmed by the appellate Court, is set aside and the petitioner is acquitted of the charge under Section 138 of the N.I. Act subject to condition that he shall deposit a sum of Rs. 8400/ - (Rupees eight thousand four hundred) by way of cost with the Orissa State Legal Services Authority, Cuttack within six weeks from today. The Misc. Case as well as the Revision stand disposed of. Cases disposed of.