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2018 DIGILAW 1323 (HP)

Ajay Kaundal v. Santosh Kumar

2018-07-16

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - This Court was constrained, to, record a decision on a time barred Cr.MP No. 485 of 2018, given the Registry, not, listing, an apposite application for condoning, the, delay in the belated institution, of, the application aforesaid, before this Court. Since the verdict has been pronounced on a time barred application, hence the verdict rendered by this Court, on, 20.6.2018 in Cr.MP No. 485 of 2018 is recalled. For the reasons spelt out in application, at hand, the delay in filing the Cr.MP No. 485 of 2018 is condoned. The application stands disposed of. Cr.MP No. 485 of 2018 This Court while pronouncing an order, upon, Cr. R. No. 225 of 2016, had, after dismissing the aforesaid criminal revision petition, hence, affirmed the concurrently recorded verdicts of conviction, and, consequent sentence imposed, upon, the convict/petitioner herein, by, both the learned Courts below, (i) hence, subsequently, the convict has instituted the instant application, cast under Section 482 of the Cr.P.C., (ii) with averments being borne therein, qua the willingness and readiness of the convict, to, deposit the entire liabilities encumbered upon him, and, as arise, from the dishonour of negotiable instrument, (ii) also, underlinings occur therein qua hence this Court, being, constrained to order, for, compounding the apt offence. 2. Be that as it may, obviously, the aforesaid endeavour, is, a post verdict endeavour. However, the learned counsel appearing for the petitioner/convict, for hence sustaining it, has placed reliance, upon, the mandate occurring, in, Section 147 of the Negotiable Instrument Act. Provisions whereof read as under: "147 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." In the aforeextracted provisions, though, an explicit and express diktat hence occurs, of, despite, no apposite therewith provisions, being, borne in the Code of Criminal Procedure, rather per se thereupon not interdiction being cast, upon, the courts concerned, to, hence make/record an order, qua compounding the apt offence arising from the dishonour, of, negotiable instrument, (i) therefrom, the learned counsel appearing for the petitioner, contends that the post verdict compository endeavour(s), rather being both legally permissible besides legally apt. The learned counsel appearing for the convict/petitioner, has, in making the aforesaid endeavour, hence, assayed to obtain succor, from, a verdict of the Hon''ble Apex Court, rendered, in a case titled as K. Subaramanian vs. R. Rajathi represented by P.O.A.P Kaliappan , (2010) 15 SCC 352 , relevant paragraphs No. 6 to 9 whereof, stand extracted hereinafter: "6.Thereafter a compromise was entered into and petitioner claims that he has paid Rs. 4,52,289/ to respondent. In support of this claim, the petitioner has produced affidavit sworn by him on December 1, 2008. The petitioner has also produced affidavit sworn by P.Kaliappan, Power of Attorney holder of R.Rajathi on December 1, 2008 mentioning that he has received a sum of Rs. 4,52,289/ due under the dishonoured cheques in full discharge of the value of cheques and he is not willing to prosecute the petitioner. 7. The Learned Counsel for the petitioner states at the bar that the petitioner was arrested on July 30, 2008 and has undergone the sentence imposed on him by the Trial Court and confirmed by Sessions Court, High Court as well as by this Court. The two affidavits sought to be produced by petitioner as additional documents would indicate that indeed a compromise has taken place between petitioner and the respondent and the respondent has accepted the compromise offered by petitioner pursuant to which he has received a sum of Rs. 4,52,289/. In the affidavit filed by the respondent a prayer is made to permit the petitioner to compound the offence and close the proceedings. 8. Having regard to the salutary provisions of Section 147 of Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, this Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code. 9. For the foregoing reasons CRL.M.P. No.12801 of 2009 in which prayer to condone the delay of 39 days caused in filing review application is allowed and delay is condoned. The Review Petition succeeds. The Order dated September 11, 2008 dismissing SLP (Crl) No.6974 of 2008 @ CRL.M.P. No.14586 of 2008 is recalled. The said SLP is restored on file with its original number. 8. The Review Petition succeeds. The Order dated September 11, 2008 dismissing SLP (Crl) No.6974 of 2008 @ CRL.M.P. No.14586 of 2008 is recalled. The said SLP is restored on file with its original number. 8. The CRL.M.P. No.12804 of 2009 in which the prayer is made by petitioner to permit him to produce affidavits sworn by him on December 1, 2008 as well as affidavit sworn by P. Kaliappan power of attorney holder of R. Rajathi on December 1, 2008, as additional documents is allowed. CRL. M.P. No.12803 of 2009 in which the petitioner has prayed to permit him to compound the offence and acquit him by setting aside the conviction recorded in Criminal case No. 726/2003 under Section 138 of the Negotiable Instruments Act by Learned Judicial Magistrate, Karur is allowed. The petitioner is permitted to compound the offence." However, the aforesaid submission addressed before this Court, by the learned counsel for the petitioner, is, rather rendered amenable to founder, for the reasons, (a) the apt affirmative order, made, by the Hon''ble Apex Court in Subramanian case , arising, from the factum of the Hon''ble Apex Court, after, affirming the verdicts, of, conviction, and, consequent sentence imposed, upon, the accused/convict therein, by the learned courts below and by the Hon''ble High Court concerned; (b) also visibly therein, with, the sentence imposed upon the convict/accused therein, rather standing undergone by him, (c) thereafter, though, through an affirmative order recorded, upon, the review petition filed, before, the Hon''ble Apex Court, subsequent to its affirming, the verdicts, of, conviction, and, consequent sentence imposed upon the accused/convict therein, the Hon''ble Apex Court had obviously set aside, the order, of, conviction pronounced, upon, the accused therein, and, had also permitted the accused/convict therein, to compound, the offences arising, out of dishonour, of, negotiable instrument. However, yet, the cullings of the aforesaid factual scenario prevailing therein, is imperative, as the post verdict compository endeavour, in consonance therewith, as, made before this Court, by the petitioner/applicant herein, has, to obviously hence satiate, in entirety, the factual matrix, borne in paragraphs No.6 to 9, of the verdict pronounced in Subramanian case, whereupon, alone the verdict would be rendered applicable hereat, (d) paragraphs whereof make explicit underlining(s), qua, the accused/convict therein, serving, the sentence of imprisonment imposed upon him, and, only for removing the stains, of, guilt, rather hence Hon''ble Apex Court, permitting the apposite post verdict endeavour, (e) whereas, hereat evidently the applicant/petitioner/convict herein, has not served, the sentence of imprisonment imposed upon him, emphatically hence the aforesaid trite non serving, of, sentence, of, imprisonment, is a stark distinctive factum therefrom, whereupon, the mandate is rendered unattracted hereat. In aftermath, the post verdict compository endeavour, as, hereat made by the applicant/petitioner herein, hence, cannot come to be accepted. The further reason being, (f) though, Section 147 of the Negotiable Instruments Act, rather bestows, upon, courts, the apt jurisdiction, to render an order visavis compounding, of, offences, arising from the dishonour, of, negotiable instrument, even despite no mandate, in consonance therewith, standing, borne in the Code of Criminal Procedure, (g) yet sweep thereof, is, unextendable, visavis any post verdict endeavour, given the Negotiable Instruments Act, not, containing any explicit categorical diktat, whereunder hence stand excluded, the clout, of, the mandate of Section 362 of the Cr.P.C., thereupon mandate thereof is to be concluded to hold sway, and, the mightiest clout, provisions thereof stand extracted hereinafter: "362. Court not to after judgment. Court not to after judgment. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." (h) wherein therein is a complete bar, against, the recalling or reviewing, of, a judgment, excepting, for correcting typographical or clerical mistakes, mistakes whereof, are not occurring hereat, rather when hereat, the verdict, of conviction, and, consequent sentence, imposed upon the accused/applicant concerned, is assayed to be recalled, (i) thereupon the post verdict compository endeavour is impermissible, given, thereupon hence standing visibly begotten, an apt infringement, of the aforesaid statutory provisions, wherein, there occurs a complete bar, against, the recalling or reviewing, of, a sealed, signatured, and, pronounced judgment. 3. For the reasons which have been recorded hereinabove, there is no merit in the instant application, and, it is dismissed accordingly.