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2014 DIGILAW 523 (PNJ)

Ashwani Sharma v. Shiva Enterprises

2014-03-12

NARESH KUMAR SANGHI

body2014
JUDGMENT Mr. Naresh Kumar Sanghi, J.:- Prayer in this petition, filed under Section 482, Cr.P.C., is for quashing of complaint No.10348 dated 17.11.2009 (Annexure P- 1) pending before the learned Judicial Magistrate Ist Class, Chandigarh, and the order dated 18.11.2009 (Annexure P-2) whereby the petitioners were summoned to face trial for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, ( for brevity “N.I.Act”) and also the order dated 24.01.2014 (Annexure P-4) whereby the application moved by the petitioners for compounding of the alleged offence was dismissed. 2. Learned counsel contends that on the very first day of appearance of the petitioners before the learned trial court, an application for compounding of the offence was presented but the same has wrongly been dismissed vide order dated 24.01.2014 and as such, a direction be issued to the learned trial court to permit the petitioners to tender the cheque amount so as to compound the offence for which they have been summoned. In support of his contention, he has placed reliance on the judgment of Hon’ble the Supreme Court in the case of Damodar S. Parbhu vs. Sayed Baba lal H, [2010(3) Law Herald (SC) 1874] : (2010)5 SCC 663 . 3. I have heard the learned counsel for the petitioner and gone through the material available on record. 4. It is true that an application for compounding of the offence under Section 138 of the N.I.Act was presented by the petitioners before the learned trial court and they proposed to return the impugned cheque amount to the respondentcomplainant but the learned trial court rejected the prayer primarily on the ground that the respondent-complainant was not accepting the cheque amount and he did not want to compound the offence. 5. In JIK Industries Limited and Others vs. Amarlal V.Jumani and another, [2012(2) Law Herald (SC) 1331] : (2012) 3 SCC 255 , Hon’ble the Supreme Court while taking into consideration Damodar S. Parbhu’s case (supra) dismissed the prayer for compounding of the offence punishable under Section 138 of the N.I.Act without the consent of the complainant, and held as under:- “82. A perusal of Section 320 makes it clear that the provisions contained in Section 320 and the various subsections is a code by itself relating to compounding of offence. It provides for the various parameters and procedures and guidelines in the matter of compounding. A perusal of Section 320 makes it clear that the provisions contained in Section 320 and the various subsections is a code by itself relating to compounding of offence. It provides for the various parameters and procedures and guidelines in the matter of compounding. If this Court upholds the contention of the appellant that as a result of incorporation of Section 147 in the NI Act, the entire gamut of procedure of Section 320 of the Code are made inapplicable to compounding of an offence under the NI Act, in that case the compounding of offence under the NI Act will be left totally unguided or uncontrolled. Such an interpretation apart from being an absurd or unreasonable one will also be contrary to the provisions of Section 4(2) of the Code, which has been discussed above. There is no other statutory procedure for compounding of offence under the NI Act. Therefore, Section 147 of the NI Act must be reasonably construed to mean that as a result of the said section the offences under the NI Act are made compoundable, but the main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of the NI Act.” 6. In the present case, the respondent/complainant is not agreeable to compound the offence, therefore, the Court cannot direct him to have the dispute compromised with the petitioners. 7. In view of the facts narrated above and the ratio of the judgment in JIK Industries Limited’s case (supra) the present petition sans merit and the same is hereby dismissed. ---------0.B.S.0------------