Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 2219 (ALL)

Kushalpal Singh v. State of U. P.

2023-09-26

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT Ram Manohar Narayan Mishra, J. Learned counsel for the revisionist and learned counsel for respondent no. 2 are present. 2. Learned counsel for revisionist submitted that a compromise has been arrived between the complainant and accused through compromise deed dated 13.9.2023, which is apprised to District Judge, Aligarh and he has been informed that same is to be verified by the court below pursuant to order dated 6.9.2023. A report has been filed by the Registrar General of this Court dated 23.9.2023 wherein it is stated that in compliance of order dated 6.9.2023, parties have filed original compromise before the District Judge, Aligarh and a report dated 22.9.2023 has been received from District Judge, Aligarh containing a report regarding verification done by Presiding Officer, Aligarh. 3. The present criminal revision has been filed against the judgement and order dated 22.11.2019 passed by Sessions Judge, Aligarh in Criminal Appeal No. 164 of 2019 (Kaushalpal Singh v. State of U.P.) arising out of judgement and order dated 22.12.2017 passed by A.C.J.M., court no. 6, Aligarh in complaint case no. 354 of 2013 (Anil Kumar Singh v. Kushalpal Singh), under section 138 of N.I. Act, P.S. Qwarsi, District Aligarh by which the revisionist has been convicted and sentenced under section 138 of N.I. Act for one year simple imprisonment and fine of Rs. 6,00,000/- with default stipulation. 4. The question that arises for consideration is as to whether at this stage of the proceedings when the revisionist has already been convicted by the trial court and his conviction has been upheld by the Appellate Court, the offence under section 138 of NI Act can be compounded. The issue is no longer res integra. In Damodar S. Prabhu v. Sayed Babalal H. : (2010) 5 SCC 663 , the Apex Court while laying down guidelines as to the levy of costs depending upon stage of the compromise arrived at between the parties, held that conviction of an accused in proceedings under section 138 of NI Act can be set aside even at appellate stage and the accused can be acquitted on the basis of a compromise with the complainant. It is held in para 21 as follows: "21. It is held in para 21 as follows: "21. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed : The Guidelines (i) In the circumstances, it is proposed as follows: (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. (c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount." 5. In Rajendra v. Nand Lal (Criminal Appeal Nos. 1214-1215 of 2019 arising out of SLP (Crl) Nos. 2990-2991/2019) decided on August 06, 2019), the Apex Court observed that in appropriate cases costs can be waived. 6. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount." 5. In Rajendra v. Nand Lal (Criminal Appeal Nos. 1214-1215 of 2019 arising out of SLP (Crl) Nos. 2990-2991/2019) decided on August 06, 2019), the Apex Court observed that in appropriate cases costs can be waived. 6. In the case of Vinay Devanna Nayak v. Ryot Seva Sahkari Bank Limited : (2008) 2 SCC 305 the Apex Court has held as under: "18. Taking into consideration even the said provision (Section 147) and the primary object underlying Section 138, in our judgment, there is no reason to refuse compromise between the parties. We, therefore, dispose of the appeal on the basis of the settlement arrived at between the appellant and the respondent. 19. For the foregoing reasons the appeal deserves to be allowed and is accordingly allowed by holding that since the matter has been compromised between the parties and the amount of Rs. 45,000/- has been paid by the appellant towards full and final settlement to the respondent-bank towards its dues, the appellant is entitled to acquittal. The order of conviction and sentence recorded by all courts is set aside and he is acquitted of the charge levelled against him." 7. The offences under the N.I. Act can be compounded at any stage of the proceedings. In the case of Vinay Devanna Nayak (supra) the Apex Court held as follows: "17. As observed by this Court in Electronics Trade and Technology Development Corpn. Ltd. v. Indian Technologists and Engineers (Electronics) (P) Ltd. [ (1996) 2 SCC 739 : 1996 SCC (Cri) 454] the object of bringing Section 138 in the statute book is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. The provision is intended to prevent dishonesty on the part of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of bank operations and ensures credibility in transacting business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably, Parliament also realised this aspect and inserted Section 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002). It thus seeks to promote the efficacy of bank operations and ensures credibility in transacting business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably, Parliament also realised this aspect and inserted Section 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002). The said section reads thus: "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." 8. A 'special law' means a provision of law, which is not applicable generally but which applies to a particular or specific subject or class of subjects. Section 41 of the Indian Penal Code, 1860 stands on the same footing and defines the phrase "special law". A special law or a statute is applicable to a particular subject, then the same would prevail over a general law with regard to the very subject. This is the accepted principle in the field of interpretation of statute. 9. Having regard to the aforesaid position of law, even though the parties have arrived at a settlement after the Appellate Court had upheld the conviction of the petitioner, yet keeping in view the spirit of section 147 of the NI Act, the offence under Section 138 of the Act can be compounded. Therefore, this is a fit case where cost is required to be waived while compounding the offence. Since the parties have settled their disputes, it is in the fitness of things to close it at this stage itself as the conditions of settlement are mutually accepted between them. The dispute is an inter-se dispute between the parties and by entering into a settlement they have closed the dispute which had arisen between them. 10. From perusal of the records and the law laid down by the Apex Court on the subject matter, the present case is a good case for exercising powers by this Court to allow the present revision. 11. The present revision is allowed. The conviction and sentence under section 138 of the N.I. Act stands annulled in terms of compromise which has been verified by the trial court. The revisionist is acquitted on account of compounding of the offence with the complainant/person affected in terms of the compromise. 12. 11. The present revision is allowed. The conviction and sentence under section 138 of the N.I. Act stands annulled in terms of compromise which has been verified by the trial court. The revisionist is acquitted on account of compounding of the offence with the complainant/person affected in terms of the compromise. 12. The judgment and order dated 22.11.2019 passed by Sessions Judge, Aligarh in Criminal Appeal No.164 of 2019 and judgment and order dated 22.12.2017 passed by A.C.J.M, Court No.6, Aligarh in Complaint Case no.354 of 2013, under section 138 N.I. Act, are hereby set-aside. 13. Office is directed to communicate this order to the concerned court within two weeks from today.