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2016 DIGILAW 571 (JHR)

Kanti Devi @ Kanti v. State of Jharkhand

2016-04-05

RAVI NATH VERMA

body2016
JUDGMENT : Ravi Nath Verma, J. Invoking the revisional jurisdiction of this Court under Sections 397 and 401 of the Code of Criminal Procedure (in short ‘the Code’), the petitioner has prayed for setting aside the judgment dated 07.01.2013 passed by learned Principal Sessions Judge, East Singhbhum, Jamshedpur in Cr. Appeal No.165 of 2010 whereby and whereunder the judgment of conviction and order of sentence passed by Judicial Magistrate, 1st Class, Jamshedpur in C/1 Case No.1422 of 2008 (T.R. No.786 of 2010), has been confirmed. 2. Heard Mr. A.K. Das, learned counsel appearing for the petitioner as well as learned counsel for the opposite party no.2 and learned counsel representing the State. 3. It is not necessary to delve into the facts leading up to the institution of proceedings before this Court, as the petitioner and opposite party no.2 have settled their dispute and have filed a joint compromise petition before this Court with a prayer to allow them to compound the offence as contemplated under Section 147 of the Act. However, a brief statement of facts is necessary for the proper appreciation. At the instance of present complainant-opposite party no.2-Pappu Kumar, a complaint petition was filed with the allegation that a friendly loan of Rs.1,50,000/- was given to the present petitioner Kanti Devi on 04.02.2008 with promise to return the same within two months but after the above stipulated period, the accused petitioner gave a cheque for the said amount on 04.04.2008 but when the said cheque was presented for encashment in bank, it stood dishonored due to “account closed”. Thereafter, a legal notice was sent to the accused-petitioner in consonance with the provisions of N.I. Act and after following other formalities as contemplated in the said Act, the complaint was filed on refusal of the petitioner to pay the said amount. 4. It appears from the record that the trial court after examination of witnesses and considering the allegation and evidences on record, convicted the petitioner under Section 138 of N.I. Act vide judgment dated 09.06.2010 and sentenced the petitioner for simple imprisonment for one year and also directed to pay a sum of Rs.1,50,000/- towards compensation in terms of Section 357(3) of the Code to the complainant-opposite party no.2. 5. 5. Aggrieved by the said judgment of conviction and order of sentence, the petitioner preferred an appeal before the Sessions court and after hearing both the parties, the appeal was dismissed and the judgment of conviction and order of sentence were affirmed. Hence, this revision. 6. Apparently, the parties were involved in friendly loan transaction whereafter the disputes had arisen on account of the dishonour of the cheque issued by the petitioner. The parties went through several stages of litigation and before this Court, they have settled their disputes and filed the joint compromise petition. In the case of O.P. Dholakia Vs. State of Haryana, (2000) 1 SCC 762 , the Hon’ble Supreme Court had permitted the compounding of the offence even though the conviction of the petitioners of that case had been upheld by all the courts after noting that the petitioner had already entered into a compromise with the complainant. The Hon’ble Supreme Court observed as follows : “Taking into consideration the nature of the offence in question and the fact that the complainant and the accused has already entered into a compromise, we think it appropriate to grant permission in the peculiar facts and circumstances of the present case to compound.” 7. The similar issues were also involved in Siva Sankaran Vs. State of Kerala and another, (2002) 8 SCC 164 and Sailesh Shyam Persekar Vs. Baban, (2005) 4 SCC 162 and in both the cases, the Hon’ble Supreme Court held that Section 147 of the Act is in the nature of enabling provision, which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 of the Cr. P.C., which states that ‘no offence shall be compounded except as provided by this section’. The compounding of the offence at later stages of litigation in cheque bouncing cases has also been held to be permissible in a recent decision of the Hon’ble Supreme Court in Damodar S. Prabhu Vs. Sayed Babalal H., (2010)3 East Cr. C. 123 (S.C.). In another recent judgment Gian Singh Vs. The compounding of the offence at later stages of litigation in cheque bouncing cases has also been held to be permissible in a recent decision of the Hon’ble Supreme Court in Damodar S. Prabhu Vs. Sayed Babalal H., (2010)3 East Cr. C. 123 (S.C.). In another recent judgment Gian Singh Vs. State of Punjab and another, (2012) 10 SCC 303 , the Hon’ble Supreme Court has widened the scope and held that the offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted. 8. Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 of the said Act even at appellate stage of the proceedings. In Gian Singh Vs. State of Punjab and another (supra), the Hon’ble Supreme Court has bestowed the power to compound the offence even to Revisional Court in suitable cases. I have stated above that after filing of joint compromise petition, learned counsel appearing for both the parties fairly admitted that the parties have settled their dispute outside the court and now they have no grievance against each other. In that view of the matter, the parties are, hereby, allowed to compound the offence. 9. Hence, in the light of the ratio decided in the cases discussed above, the conviction of the petitioner by the trial court i.e. the court of Judicial Magistrate, 1st Class, Jamshedpur in C/1 Case No.1422 of 2008 (T.R. No.786 of 2010) as well as the order of affirmation of judgment of conviction and order of sentence by learned Principal Sessions Judge, East Singhbhum, Jamshedpur in Cr. Appeal No. 165 of 2010 are, hereby, set aside. The petitioner is acquitted of the charges. The petitioner, who is exempted from his appearance is, hereby, discharged from liability. 10. Appeal No. 165 of 2010 are, hereby, set aside. The petitioner is acquitted of the charges. The petitioner, who is exempted from his appearance is, hereby, discharged from liability. 10. Accordingly, this revision application is, hereby, allowed. Application allowed.