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2016 DIGILAW 461 (JHR)

Vijay Kumar Agrwal v. State of Jharkhand

2016-03-11

RAVINATH VERMA

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JUDGMENT : Ravinath Verma, J. The solitary question, which falls for determination in the instant revision application filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), is as to whether the petitioner, who has been convicted under Section 138 of the Negotiable Instrument Act (hereinafter referred to as " the N.I. Act") and sentenced to undergo rigorous imprisonment for one year with fine of Rs. Three Lakh by the learned Judicial Magistrate, 1st Class, Jamshedpur, in C/1 Case No.1540 of 2006/T.R. No.1190 of 2008 and affirmed by the learned Addl. Sessions Judge, F.T.C.-VI, Jamshedpur, in Criminal Appeal No.71 of 2008 with modification in period of sentence, can be allowed to be compounded. 2. Bereft of unnecessary details of the complaint case, the brief fact is that on a written complaint of the complainant/Opp. Party No.2-Mahesh Chander Gupta, the aforesaid case was instituted with the allegation that a friendly loan of Rs.2 Lakh was given to the present petitioner. Where after, four cheques of Rs.50,000/- each, drawn on Punjab National Bank, Golmuri Branch, Jamshedpur was issued in favour of the complainant by the petitioner towards repayment of the loan amount, but when the said four cheques were presented in Bank for its encashment, the same was dishonoured, showing "Insufficient Funds" on 09.09.2006 and 12.09.2006 respectively. Thereafter, a legal notice dated 18.09.2006 was sent to the petitioner, demanding total amount of Rs.2 Lakh, but in spite of the said legal notice, the petitioner did not pay any amount. Where after, the present complaint case was filed. 3. The Learned Judicial Magistrate, after considering the evidences adduced on behalf of the parties and the pleadings, vide its order dated 14.03.2008, convicted the petitioner for the offence under Section 138 of the N.I. Act and sentenced him to undergo rigorous imprisonment for one year with fine of Rs.3 Lakh. 4. Being aggrieved by the said order dated 14.03.2008, this petitioner preferred Cr. Appeal No.71 of 2008, which was finally heard by learned Addl. Sessions Judge, F.T.C.-VI, Jamshedpur and by the impugned judgment dated 05.08.2009, the conviction of the petitioner under Section 138 of the N.I. Act was confirmed with modification in sentence as indicated above. 5. The petitioner, being aggrieved by the said impugned judgment dated 05.08.2009, preferred this revision before this Court. 6. Sessions Judge, F.T.C.-VI, Jamshedpur and by the impugned judgment dated 05.08.2009, the conviction of the petitioner under Section 138 of the N.I. Act was confirmed with modification in sentence as indicated above. 5. The petitioner, being aggrieved by the said impugned judgment dated 05.08.2009, preferred this revision before this Court. 6. During pendency of the revision application, both the parties i.e. the petitioner as well as the Complainant/Opp. Party No.2 settled their disputes outside the Court. Interlocutory Application bearing I.A. No.1383 of 2016, enclosing a joint compromise petition, with a prayer to set aside the entire criminal proceeding as well as the judgment of conviction and sentences passed by the two courts below. 7. Since the petitioner was in custody, an affidavit, stating the factum of compromise was filed by Smt. Sunita Agarwal, being the Pairvikar/wife of the petitioner. The complainant/Opp. Party No.2, was physically present in the Court and accepted the factum of the compromise with the petitioner and informed the Court that he has now no grievance against the petitioner. 8. Learned counsel appearing for the petitioner submitted that Section 138 of the N.I. Act, is compoundable and since the parties have settled their disputes and the allegation being civil in nature and has no impact on society, parties may be allowed to compound the offence. Learned counsel, relying upon the case of Gian Singh v. State of Punjab and another, (2012) 10 SCC 303 , submitted that the Hon'ble Supreme Court in the said judgment has held that even the Revisional Court is competent to allow any person to compound any offence who is competent to compound and the consequence of composition of an offence is acquittal of the accused, by setting aside the judgment of conviction and sentences passed by the trial court and affirmed by the appellate court. 9. Learned counsel appearing for the Opp. Party No.2, fairly submitted that the parties have settled their disputes and a joint compromise petition along with Interlocutory Application to that extent has been filed in this Court and in the interest of justice, he has no objection, if the judgment of conviction and sentences passed by the courts below are set aside. 10. Section 147 of the N.I. Act, 1881, deals with the offences to be compoundable. 10. Section 147 of the N.I. Act, 1881, deals with the offences to be compoundable. For the proper adjudication of the dispute between the parties, a reference of Section 147 of the N.I. Act, is necessary, which reads as follows:- "47. Offences to be compoundable.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable." From mere perusal of the aforesaid provision, it is apparent that the parties can settle their disputes at any stage even before the appellate Court or before the Revisional Court. 11. Hon'ble Supreme Court in the case of Damodar S. Prabhu v. Sayed Babulal H., 2010 (3) East Cr. C. 123, while deciding the similar issue, has given a complete guidelines and held that the application for compounding can be made before the High Court in Revision or Appeal, though the Court allowed the compounding on the condition of payment of 15% of the cheque amount by way of costs. 12. In the instant case, the parties have settled their disputes outside the court and has filed the joint compromise petition. 13. In another case Gian Singh (supra), the Hon'ble Supreme Court, while considering the similar issue of compromising of cases, held in Paragraph-51 as follows:- "51. Section 320 of the Code articulates public policy with regard to the compounding of offences. It catalogues the offences punishable under IPC which may be compounded by the parties without permission of the court and the composition of certain offences with the permission of the court. The offences punishable under the special statutes are not covered by Section 320. When an offence is compoundable under Section 320, abatement of such offence or an attempt to commit such offence or where the accused is liable under Section 34 or 149 IPC can also be compounded in the same manner. A person who is under 18 years of age or is an idiot or a lunatic is not competent to contract compounding of offence but the same can be done on his behalf with the permission of the court. If a person is otherwise competent to compound an offence is dead, his legal representatives may also compound the offence with the permission of the court. If a person is otherwise competent to compound an offence is dead, his legal representatives may also compound the offence with the permission of the court. Where the accused has been committed for trial or he has been convicted and the appeal is pending, composition can only be done with the leave of the court to which he has been committed or with the leave of the appeal court, as the case may be. The Revisional Court is also competent to allow any person to compound any offence who is competent to compound. The consequence of the composition of an offence is acquittal of the accused. Sub-section (9) of Section 320 mandates that no offence shall be compounded except as provided by this section. Obviously, in view thereof the composition of an offence has to be in accord with Section 320 and in no other manner." 14. In the above referred cases, the Hon'ble Supreme Court, while allowing the parties to compound the offence, held that when the parties have settled all the disputes between them amicably, irrespective of the fact that such offence has not been made compoundable, the High Court, within the frame work of Revisional power, have every jurisdiction to set aside the conviction and sentences. 15. In the instant case, the offences under Section 138 of the N.I. Act is itself compoundable under Section 147 of the Act. 16. I have stated above, that the complainant/Opp. Party No.2 was physically present in the Court and on enquiry, he admitted the factum of compromise and also informed that he has now no grievance against the petitioner. 17. In that view of the matter, the parties are, hereby, allowed to compound the offence. 18. Hence, in the light of the ratio decided in Gian Singh (supra) and the facts discussed above, this revision application is, hereby, allowed. The judgment of conviction and sentences passed by the learned Judicial Magistrate, 1st Class, Jamshedpur, in C/1 Case No.1540 of 2006/T.R. No.1190 of 2008 against the petitioner and affirmation of the judgment of conviction and modification in period of sentence by the appellate court i.e. learned Addl. Sessions Judge, F.T.C.-VI, Jamshedpur, in Criminal Appeal No.71 of 2008 are, hereby, set aside. The petitioner is acquitted of the charges levelled against him. 19. The petitioner, who, is in custody, is directed to be released forthwith, if not wanted in any other case. Sessions Judge, F.T.C.-VI, Jamshedpur, in Criminal Appeal No.71 of 2008 are, hereby, set aside. The petitioner is acquitted of the charges levelled against him. 19. The petitioner, who, is in custody, is directed to be released forthwith, if not wanted in any other case. Application allowed.