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2013 DIGILAW 85 (AP)

D. Lakshmi v. Y. V. Sarma

2013-02-11

B.SESHASAYANA REDDY

body2013
ORDER This criminal revision case is directed against the order, dated 22.12.2012 passed in Crl. MP No. 753 of 2012 in Criminal Appeal No. 59 of 2011 on the file of II Additional District and Sessions Judge, Cyberabad, Ranga Reddy District at L.B. Nagar, whereby and whereunder, the learned Additional Sessions Judge directed the parties to follow the guidelines of the apex Court in Damodar S. Prabhu v. Sayed Babalal H., 2010 (2) ALD (Crl.) 701 (SC) = (2010) 5 SCC 663 , to compound the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (for short, 'the N.I. Act'); 2. Facts, in brief, are: . The petitioner is the accused and the respondent is the complainant in CC No. 241 of 2007 on the file of III Metropolitan Magistrate, Cyberabad, L.B. Nagar, Ranga Reddy District. The accused has been prosecuted for the offence under Section 138 of the N.I. Act on the complaint filed on 2.4.2007. The learned III Metropolitan Magistrate, Cyberabad, L.B. Nagar, Ranga Reddy District, on full-fledged trial, found the petitioner/ accused guilty for the offence under Section 138 of the N.I. Act, convicted him accordingly and sentenced him to suffer S.I for one year and pay a fine of Rs. 5,000/- in default to suffer Simple Imprisonment for a period three months, by judgment, dated 29.3.2011. The petitioner/accused assailed the judgment of conviction and sentence passed in CC No. 241 of 2007 by filing Criminal Appeal No. 59 of 2011 on the file of II Additional District and Sessions Judge, Ranga Reddy District at L.B. Nagar, Hyderabad. Pending the appeal, the petitioner/accused and the respondent/complainant settled their disputes. Thereupon, the petitioner/accused and the respondent/complainant moved Crl. MP No. 753 of 2012 under Section 147 of the N.I. Act to record compromise and set aside the conviction passed in CC No. 241 of 2007, dated 29.3.2011. The learned Additional Sessions Judge directed the parties to follow the guidelines issued by the Supreme Court in Damodar S. Prabhu's case (supra), in compounding the offence under Section 138 of the N.I. Act, by an order, dated 22.12.2012. Hence this criminal revision case by the accused. 3. Heard learned Counsel appearing for the petitioner/accused and learned Counsel appearing for the 1st respondent/complainant. 4. Hence this criminal revision case by the accused. 3. Heard learned Counsel appearing for the petitioner/accused and learned Counsel appearing for the 1st respondent/complainant. 4. It is contended by the learned Counsel appearing for the petitioner/accused that the guidelines as to payment of certain percentage of amount to the Legal Services Authority in the event of the offence under Section 138 of N.I. Act is compounded, cannot be made applicable to the present case since the complaint came to be instituted much prior to the issuance of the guidelines. In support of his contentions, reliance has been placed on the judgment of Jharkhand High Court in Krishna Prasad v. State of Jharkhand, 2012 (1) Crimes 110 (Jhar.), wherein it has been held as hereunder: "It is relevant to mention that in all the interlocutory applications the petitioner as well as the opposite party No. 2 lender are consistent that they have resolved the dispute and have no longer grievance against each other which could be possible only by the intervention of the well wishers and the friends. The petitioner borrower contended that he has paid Rs. 19,500/- at the first instance to the opposite party No. 2 against the receipt on the letter pad issued by the opposite party No. 2. Though it has not been clearly mentioned in the counter-affidavit that opposite party No. 2 has received the entire amount on his full and final settlement but has admitted that the dispute has been resolved and he is not inclined to pursue the matter and at the instance of the opposite party No. 2, the petitioner was admitted to bail during pendency of this criminal revision. Facts have been reiterated in all the three interlocutory applications that the dispute has been resolved and that the complainant-opposite part No. 2 is not inclined to pursue the matter further. Facts have been reiterated in all the three interlocutory applications that the dispute has been resolved and that the complainant-opposite part No. 2 is not inclined to pursue the matter further. Contents of the interlocutory applications have been supported by the petitioner as well as by the opposite party No. 2 and considering the contents of all the petitions, referred to hereinbefore, as also taking into consideration the contents of the counter-affidavit filed on behalf of the opposite party No. 2, I allow the composition of the dispute in view of the provisions under Section 147 of the Negotiable Instruments Act, 1881, consequently, the petitioner is acquitted relying upon the decision of the Apex Court in K.M Ibrahim v. K.P. Mohammed and another (supra), referred to hereinbefore." 5. The point that calls for determination in this revision case is whether the guidelines issued in Damodar S. Prabhu's case (supra), can be made applicable to the complaints filed prior to the said judgment? 6. The guidelines came to be issued in view of there being no procedure prescribed as to when the offences under Section 138 of the N.I. Act can be compounded. For better appreciation, I may refer Paras 24 to 26 of the cited judgment, which read as hereunder: "24. 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 Section 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 Cr.P.C., 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. 25. We have already explained that the scheme contemplated under Section 320 Cr.P.C., 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. 25. 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. 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. 26. 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." 7. The Supreme Court in Visakha v. State of Rajasthan, 1997 (2) ALD (Crl.) 604 (SC) = (1997) 6 SCC 241 = 1997 SCC (Cri.) 932, held that where the executive fails to fill the gap in legislation, the judiciary must step in and provide a solution till Legislature acts. There are ample powers conferred by Articles 32 read with 142 of the Constitution of India to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of the Supreme Court as provided in Article 144 of the Constitution of India. The directions issued by the Supreme Court in a decision constitute binding law under Article 141 of the Constitution of India. When the Supreme Court decides a principle it would be the duty of the High Court or subordinate Courts to follow that decision. 8. The directions issued by the Supreme Court in a decision constitute binding law under Article 141 of the Constitution of India. When the Supreme Court decides a principle it would be the duty of the High Court or subordinate Courts to follow that decision. 8. In interpreting the judgment of the Supreme Court in the above referred case to make the guidelines applicable to the cases instituted subsequent to the judgment is nothing but diluting the guidelines issued by the Supreme Court. I express my inability to accept the view taken by the learned Single Judge of the Jharkhand High Court in Krishna Prasad's case (supra). When once guidelines are issued in the matter of entertaining the applications for compounding the offence under Section 138 of the N.I. Act, they are to be made applicable to all the cases pending in whatever stage they are. The Supreme Court has given discretion to the trial Court or appellate Court to reduce the scale of costs having regard to the specific facts and circumstances of each case. In that view of the matter, I do not see any illegality or irregularity in the order impugned in the revision case warranting interference of this Court in exercise of power under Sections 397 and 401 Cr.P.C. 9. Accordingly, the criminal revision case is dismissed at the admission stage.