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2021 DIGILAW 2386 (RAJ)

Kalulal Bhat v. Durga Salvi

2021-12-20

DEVENDRA KACHHAWAHA

body2021
ORDER 1. Heard learned counsel for the appellant on application under Section 5 of the Limitation Act. 2. As per office report, the instant appeal is barred by 653 days. 3. Having regard to the grounds set out in the application, I feel persuaded to accept the application. 4. Accordingly, same is allowed. Delay in filing the appeal is condoned. 5. With the consent of learned counsel for the parties, matter is heard and decided finally. 6. Accused-petitioner has preferred this revision petition under Section 397/401 Cr.P.C. to challenge judgment dated 13.06.2019, passed by Additional Sessions Judge No.5, Udaipur (for short, 'learned appellate Court'), whereby learned appellate Court has confirmed judgment dated 16.02.2015, rendered by Special Judicial Magistrate (N.I. Act Cases) No.2, Udaipur (for short, 'learned trial Court'). The learned trial Court, by its verdict dated 16.02.2015, indicted accused-petitioner for offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'Act') and handed down sentence of one year's simple imprisonment. Besides imprisonment, the learned trial Court has also ordered that accused-petitioner should pay compensation to the complainant to the tune to Rs. 2,50,000/-. Being aggrieved by the same, petitioner approached learned appellate Court but that effort did not fructify to his advantage as the learned appellate Court dismissed the appeal. This sort of situation has necessitated filing of this revision petition. 7. Learned counsel for the petitioner submits that now rival parties have sorted out their dispute and compromise has been arrived at. The copy of the compromise dated 03.12.2021 has already been taken on record. With this positive assertion, learned counsel has urged that both the impugned judgments be annulled and sentence handed down by learned trial Court and confirmed by learned appellate Court be set aside. Learned counsel has relied on a decision of Supreme Court in Damodar S. Prabhu Vs. Sayed Babalal H. [ (2010) 5 SCC 663 ]. 8. Learned counsel for the complainant stated that although the accused-petitioner is behind the bars but the complainant-respondent No.l has received full and final amount which is due against accused-petitioner and now no amount is due between the parties. It is further submitted that looking to the nature of offence and in the wake of settlement of dispute between rival parties, the conviction recorded by learned trial Court and upheld by the learned appellate Court merits annulment. 9. It is further submitted that looking to the nature of offence and in the wake of settlement of dispute between rival parties, the conviction recorded by learned trial Court and upheld by the learned appellate Court merits annulment. 9. I have heard learned counsel for the accused-petitioner and learned counsel for the complainant and perused the materials available on record. 10. Chapter XVII of the Act deals with penalties in case of dishonor of cheques for insufficiency of funds in the accounts. A complete procedure in this behalf is provided under Section 138 to 147 of the Act. Section 142 deals with cognizance of offence and Section 143 empowers a Court to try cases under Section 138 of the Act summarily. As per Section 147 of the Act, every offence punishable under the Act is compoundable notwithstanding anything contained in the Cr.P.C. While it is true that the offence is compoundable but a pivotal question, which has emerged for consideration, is whether revisional powers can be exercised by this Court to compound the offence under Section 138 of the Act after conviction of the petitioner by appellate Court. 11. In Damodar S. Prabhu (supra), Supreme Court has examined the provisions of Section 138 and 147 of the Act threadbare and observed that compensatory aspect of the remedy should be given priority over the punitive aspect. The Court observed that Section 147 of the Act, being an enabling provision, it can serve as exception to the general rule incorporated in sub-sec.(9) of Section 320 Cr.P.C. The Court, while laying emphasis on non-obstante clause under the aforesaid Section, further held that Section 147 inserted by way of amendment to special law will override the effect of Section 320(9) Cr.P.C. The Court approved compounding of offences at a later stage of litigation in cheque bouncing cases. Finally, the Court framed certain guidelines for a graded scheme of imposing costs on parties, who unduly delay compounding of the offences and proposed certain percentage of cheque amount to be deposited with Legal Services Authority. 12. Applying the ratio decidendi of Damodar S. Prabhu (supra) and the guidelines framed therein, on the strength of compromise arrived at between petitioner and the complainant, I feel persuaded to exercise revisional jurisdiction for doing real and substantial justice in the matter for the administration of which alone the Courts exist. 13. 12. Applying the ratio decidendi of Damodar S. Prabhu (supra) and the guidelines framed therein, on the strength of compromise arrived at between petitioner and the complainant, I feel persuaded to exercise revisional jurisdiction for doing real and substantial justice in the matter for the administration of which alone the Courts exist. 13. Accordingly, I prefer to give priority to the compensatory aspect of remedy over the punitive aspect in the matter in the wake of settlement of dispute and compromise being arrived at between the rival parties. 14. In view of foregoing discussion, the instant revision petition is allowed, impugned judgment dated 13.06.2019 passed by learned appellate Court as well as judgment dated 16.02.2015 passed by the learned trial Court are set at naught as a consequence of compromise having been arrived at between the rival parties and while acknowledging their compromise offence under Sec. 138 of the Act is hereby compounded by resorting to Section 147 of the Act. Compounding of offence under Section 138 of the Act, obviously, entails acquittal of the petitioner. 15. However, taking into account the fact that petitioner has caused undue delay in making endeavour for compounding of offence, in terms of guidelines framed by the Supreme Court in Damodar S. Prabhu (supra), accused-petitioner is ordered to be released, if not required in any other case, subject to the condition that he deposits 15% of the cheque amount, i.e., Rs.27,000/- (1,80,000/- X 15%) with the District Legal Services Authority, Udaipur within a period of one month from today. In case, the cost is not deposited by the petitioner before the District Legal Services Authority within the stipulated period, the revision petition may be listed before this Court for passing appropriate orders. 16. After detailed discussion, the revision petition is allowed in the light of the judgment of Damodar S. Prabhu (supra).