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2023 DIGILAW 675 (UTT)

Kushdhwaj Shamal v. State of Uttarakhand

2023-12-13

RAKESH THAPLIYAL

body2023
JUDGMENT : RAKESH THAPLIYAL, J. 1. Present Application, under Section 482 of Cr.P.C. has been preferred by the applicant, who is in jail after conviction pursuant to the judgment rendered by the IInd Additional Civil Judge (Junior Division)/Judicial Magistrate, Kashipur, District Udham Singh Nagar in Criminal Case No. 867 of 2005 dated 04.01.2010, whereby the applicant has been convicted in respect of the offence punishable under Section 138 of the Negotiable Instruments Act with one year simple imprisonment with fine of Rs. 1,000/- failing which, he has to undergo further one month”s simple imprisonment. In addition to this, a compensation of Rs. 35,000/- was also awarded to the complainant in view of Section 357(3) of the Code of Criminal Procedure. Against this judgment dated 04.01.2010, whereby the applicant was convicted, a Criminal Appeal being Criminal Appeal No. 05 of 2010 Kushdwaj Shamal vs. State of Uttarakhand and Another was preferred before the Additional District and Sessions Judge, Kashipur, District Udham Singh Nagar and the said Appeal was dismissed on 11.01.2011, against which a Criminal Revision being Criminal Revision No. 05 of 2011 was also preferred before this Court and the said revision was also dismissed by order dated 21.06.2022. This order has not been assailed by the applicant and has attained finality. 2. Now a Compounding Application has been moved, which is supported with the affidavit of the applicant, who is in jail as well as with the affidavit of the complainant-Anup Agrawal. 3. Sagar Kumar-son of the present applicant and the complainant-Anup Kumar both are present in the Court and both of them have been identified by their respective counsel through their Adhar Cards. This Court also interacted with them and they stated that now a settlement has arrived between the parties and the entire amount of compensation, which includes the amount mentioned in the cheque, has been paid to the complainant (respondent No. 2). 4. Learned counsel for the parties submit that in view of Section 147 of the Negotiable Instruments Act, these offences are compoundable, however, here a question arises, whether after conviction, which is confirmed by the superior Court, still the offences can be compounded. In reference to this, Mr. P.C. Pethshali, learned counsel for the applicant placed reliance on the judgment of the Allahabad High Court in the case of Rishi Mohan Srivastava vs. State of U.P. and Another, 2021 SCC Online All. In reference to this, Mr. P.C. Pethshali, learned counsel for the applicant placed reliance on the judgment of the Allahabad High Court in the case of Rishi Mohan Srivastava vs. State of U.P. and Another, 2021 SCC Online All. 532 where after conviction, the offences were compounded. Mr. P.C. Pethshali particularly refers Paragraphs 27, 28, 29 and 30 of the said judgment, which read as under: “27. The expression “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 Penal Code 1860 stands on the same footing and defines the phrase special law. In this connection I would like to quote the well accepted proposition of law emerging from various observations made by the Hon”ble Apex Court in different decisions as a gist of the principle and it can be summarised as under: “When 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, is the accepted principle in the field of interpretation of statute.” 28. In reference to offence under section 138 of N.I. Act read with section 147 of the said Act, the parties are at liberty to compound the matter at any stage even after the dismissal of the revision application. Even a convict undergoing imprisonment with the liability to pay the amount of fine imposed by the court and/or under an obligation to pay the amount of compensation if awarded, as per the scheme of N.I. Act, can compound the matter. The complainant i.e. person or persons affected can pray to the court that the accused, on compounding of the offence may be released by invoking jurisdiction of this court under section 482 Cr.P.C. If the parties are asked to approach the Apex Court then, what will be situation, is a question which is required to be considered in the background of another accepted progressive and pragmatic principle accepted by our courts that if possible, the parties should be provided justice at the door step. The phrase “justice at the door step” has taken the court to think and reach to a conclusion that it can be considered and looked into as one of such special circumstances for the purpose of compounding the offence under section 147 of the N.I. Act. The phrase “justice at the door step” has taken the court to think and reach to a conclusion that it can be considered and looked into as one of such special circumstances for the purpose of compounding the offence under section 147 of the N.I. Act. 29. It is also well settled that the operation or effect of a general Act may be curtailed by special Act even if a general Act contains a non-obstante clause. But here is not a case where the language of section 320 Cr.P.C. would come in the way in recording the compromise or in compounding the offence punishable under section 138 of the N.I. Act. On the contrary provisions of section 147 of N.I. Act though starts with a non-obstante clause, is an affirmative enactment and this is possible to infer from the scheme that has overriding effect on the intention of legislature reflected in section 320 Cr.P.C. 30. Merely because the litigation has reached to a revisional stage or that even beyond that stage, the nature and character of the offence would not change automatically and it would be wrong to hold that at revisional stage, the nature of offence punishable under Section 138 of the N.I. Act should be treated as if the same is falling under table-II of Section 320 IPC. I would like to reproduce some part of the statement of objects and reasons of the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002: “1. The Negotiable Instrument Act 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instrument Laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penalties in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instrument Act, 1981, namely Section 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. 2. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. 2. A large number of cases are reported to be pending under Sections 138 and 142 of the Negotiable Instruments Act in various courts in the country. Keeping in view the large number of complaints under the said Act, pending in various courts, a Working Group was constituted to review Section 138 of the Negotiable Instruments Act, 1881 and make recommendations as to what changes were needed to effectively achieve the purpose of that Section. 3.................. 4. Keeping in view the recommendations of the Standing Committee on finance and other R/SCR.A/2491/2018 ORDER representations, it has been decided to bring out, inter-alia the following amendments in the Negotiable Instrument Act 1881, namely: (i) xxx xxx xxx (ii) xxx xxx xxx (iii) xxx xxx xxx (iv) to prescribe procedure for dispensing with preliminary evidence of the complainant. (v) xxx xxx xxx (vi) xxx xxx xxx (vii) to make the offences under the Act compoundable......... 5. xxx xxx xxx 6. The Bill seeks to achieve the above objects.” 5. I have also gone through the said judgment and I have also examined Section 147 of the Negotiable Instruments Act, which mandates that the parties are at liberty to compound the matter at any stage even after conviction. The observation, as drawn in the said judgment, is in Paragraph-33, which is being reproduced herein-below: “33. So the intention of the legislature and object of enacting “Banking” Public Financial Institutions and the Negotiable Instrument Laws (Amended Act) 1988 and subsequent enactment, i.e. Negotiable Instruments (Amendment and Miscellaneous Provisions Act 2002 leads this Court to a conclusion that the offence made punishable under Section 138 of N.I. Act is not only an offence qua property but it is also of the nature of an economic offence, though not covered in the list of statutes enacted in reference to Section 468 of Cr.P.C. Thus, the parties, in reference to offence under Section 138 N.I. Act read with Section 147 of the said Act are at liberty to compound the matter at any stage even after the dismissal of the application.” 6. After considering the arguments as advanced by the learned counsel for the parties, I am of the view that even after conviction, the parties may compound the matter by moving a Compounding Application. 7. Learned Brief Holder for the State Mr. Saurabh Pandey also fairly submits that even after conviction, the offences can be compounded in view of Section 147 of the Negotiable Instruments Act. 8. In view of this, the Compounding Application deserves to be allowed since the entire amount of compensation, which includes the amount of cheque has been paid to the complainant, which the complainant admits. 9. The Compounding Application is allowed. Consequently, the sentence awarded to the applicant pursuant to the judgment 04.01.2010 passed by the IInd Additional Civil Judge (Jr. Division)/Judicial Magistrate, Kashipur, District Udham Singh Nagar in Criminal Case No. 867 of 2005 Anup Agrawal vs. Kushdjwak Shamal are quashed and the applicant is acquitted from the charge. 10. Accordingly, the instant C-482 application is disposed of.