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2018 DIGILAW 3324 (MAD)

B. Sakravarthi v. N. Thangaraj

2018-09-27

M.DHANDAPANI

body2018
JUDGMENT M. DHANDAPANI, J. 1. This criminal revision has been filed seeking to set aside the judgment dated 19.12.2016 made in C.A.No.119 of 2016 on the file of the I Additional District and Sessions Court, Erode confirming the conviction imposed in the judgment dated 03.05.2016 made in S.T.C.No.181 of 2015 on the file of the Judicial Magistrate (Fast Track Court No.I), Erode. 2. The petitioner is the accused and the respondent is the defacto complainant. For the sake of convenience, the parties will be hereinafter referred to as 'accused' and 'complainant'. 3. The complainant initiated proceedings under Section 138 of the Negotiable Instruments Act in S.T.C.No.181 of 2015 before the learned Judicial Magistrate (Fast Track Court No.I), Erode, against the accused stating that the accused borrowed a sum of Rs. 2,50,000/- on 12.10.2014 and agreed to repay the same within a period of two months with interest at the rate of 12%. Accordingly, he gave a Cheque bearing No.438893, dated 12.12.2014, drawn on ICICI Bank, Erode Branch, for a sum of Rs. 2,55,000/-. When the said Cheque was presented for collection, the same was returned on 15.12.2014 as 'funds insufficient'. Hence, the complainant sent a legal notice to the accused on 29.12.2014 and the same was received by the accused on 03.01.2015. Since the accused neither sent reply to the legal notice nor repaid the amount, the complainant filed the petition. 4. After elaborate discussions, the trial Court convicted the petitioner under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs. 5,000/- in default to undergo 15 days simple imprisonment. Challenging the same, the petitioner filed appeal in C.A.No.119 of 2016 before the learned I Additional District and Sessions Judge, Erode and the learned I Additional District and Sessions Judge, Erode, vide order dated 19.12.2016, dismissed the appeal and confirmed the conviction and sentence passed by the learned Judicial Magistrate, Fast Track Court No.1, Erode. Aggrieved by the same, the present revision is filed. 5. The learned counsel for the petitioner submitted that the petitioner has paid the entire Cheque amount of Rs. 2,55,000/- to the respondent as full and final settlement. He would further submit that the respondent/complainant accepted and received the payment and has consented for compounding the offence under Section 138 of the Negotiable Instruments Act. 6. 5. The learned counsel for the petitioner submitted that the petitioner has paid the entire Cheque amount of Rs. 2,55,000/- to the respondent as full and final settlement. He would further submit that the respondent/complainant accepted and received the payment and has consented for compounding the offence under Section 138 of the Negotiable Instruments Act. 6. To that extent, compounding affidavit of N. Thangaraj dated 27.09.2018 duly signed by N. Thangaraj has also been filed and the relevant portion of the same reads as follows : "7.I submit that during pendency of the condone delay petition the dispute between me and the petitioner/accused were amicably settled through negotiation. I respectfully state that the petitioner/accused had paid the entire cheque amount of Rs. 2,55,000/- to me and to that effect I have also issued a receipt on 11.08.2018. I received the cheque amount of Rs. 2,55,000/- (Rupees two lakhs and fifty five thousand only) from the petitioner as full and final settlement and I have no other claim from the petitioner. It is therefore prayed that this Hon'ble Court may be pleased to record this compounding affidavit and pass suitable orders by appreciating the facts and circumstances of the above case and thus render justice." 7. In the case of Damodar S. Prabhu Vs. Syed Babalal H., (2010) 5 SCC 663 , the Full Bench of the Hon'ble Supreme Court has held that where the offences are essentially of a private nature and relatively not quite serious, the Code considers it expedient to recognise some of them as compoundable offencs and some others are compoundable only with the permission of the Court. In this regard, it is useful to extract hereunder paragraphs 16 and 17: "16. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary [cited from : K.N.C. Pillai, R.V.Kelkar's Criminal Procedure, Fifth Edn. (Lucknow: Eastern Book Company, 2008) at p.444] "17.2. Compounding of offences .-- A crime is essentially a wrong against the society and the State. Therefore any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. (Lucknow: Eastern Book Company, 2008) at p.444] "17.2. Compounding of offences .-- A crime is essentially a wrong against the society and the State. Therefore any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. However, where the offences are essentially of a private nature and relatively not quite serious, the Code considers it expedient to recognise some of them as compoundable offences and some others as compoundable only with the permission of the Court." 17. In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [cited from : Arun Mohan, some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act - Trackling an avalanche of cases (New Delhi : Universal Law Publishing Co. Pvt. Ltd., 2009) at p.5]: "...Unlike that for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest likes primarily in recovering the money rather than seeking the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque." 8. With the above principles in mind, if this Court see the present case, it is only a money transaction and the complainant has also received the amount from the petitioner/ accused and in this regard, compounding affidavit of N.Thangaraj dated 27.09.2018 duly signed by N. Thangaraj has also been filed. Therefore, the complainant's interest lies primarily in recovering the money rather than seeking the drawer of the cheque in jail. Further Section 147 of the Negotiable Instruments Act also empowers this Court to compound the offence under section 138 of the Negotiable Instruments Act. 9. In view of the ratio laid down by the Honourable Supreme Court of India and also considering the compounding affidavit of N.Thangaraj dated 27.09.2018, this Court is of the view that the Judgment in S.T.C.No.181 of 2015 on the file of the learned Judicial Magistrate (Fast Track Court No.I), Erode, is liable to be set aside. 10. 9. In view of the ratio laid down by the Honourable Supreme Court of India and also considering the compounding affidavit of N.Thangaraj dated 27.09.2018, this Court is of the view that the Judgment in S.T.C.No.181 of 2015 on the file of the learned Judicial Magistrate (Fast Track Court No.I), Erode, is liable to be set aside. 10. Accordingly, the conviction and sentence imposed on the revision petitioner/accused in S.T.C.No.181 of 2015 on the file of the learned Judicial Magistrate (Fast Track Court No.I), Erode and confirmed in C.A.No.119 of 2016 on the file of the I Additional District and Sessions Court, Erode, are set aside and this criminal revision is disposed of. The revision petitioner/accused is acquitted from all the charges levelled against him. The copy of the compounding affidavit of N.Thangaraj dated 27.09.2018 is taken on record. 11. This criminal revision is accordingly disposed of. Consequently, the connected miscellaneous petitions are closed.