2018 (4) TMI 546 - HC - Indian Laws

Court Compounds Offence in Revision Petition, Emphasizes Compensatory Aspect

Mohammed Yunus Son of Shri Mohd Hanif Versus The State of Rajasthan, Shri Shivraj Garg Son of Suresh Chandra Garg, C/o Bheru Lal Khatik

The Court, in a revision petition challenging a judgment under Section 397/401 Cr.P.C. for an offence under Section 138 of the Negotiable Instruments Act, ... Revision petition - Compounding of offence - offence under Section 138 of the Negotiable Instruments Act, 1881 - dishonor of certain cheques for insufficiency of funds - case of Revenue is that although offence under Section 138 of the Act is compoundable but after verdict of learned appellate Court, it may not be appropriate to grant indulgence to the petitioner - 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? Held that: - applying the ratio decidendi of Damodar S.Prabhu [2010 (5) TMI 380 - SUPREME COURT OF INDIA] and the guidelines framed therein, on the strength of compromise being 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. 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. Revision petition allowed. Issues:Challenge to judgment under Section 397/401 Cr.P.C., Compounding of offence under Section 138 of the Negotiable Instruments Act, 1881, Exercise of revisional powers, Legal position post judgment in Damodar S. Prabhu Vs. Sayed Babalal H., Guidelines for graded scheme of imposing costs on delayed compounding of offences.Analysis:The accused-petitioner filed a revision petition challenging the judgment passed by the learned trial Court and confirmed by the learned appellate Court, which indicted the petitioner for an offence under Section 138 of the Negotiable Instruments Act, 1881. The trial Court sentenced the petitioner to two years' simple imprisonment and ordered payment of compensation to the complainant. The petitioner sought annulment of both judgments due to a compromise reached between the parties, supported by learned counsel for the petitioner. The Public Prosecutor acknowledged the compoundable nature of the offence but opposed indulgence post the appellate Court's verdict. The complainant's counsel also supported annulment based on the settlement and the nature of the offence.The Court examined the provisions of Section 138 to 147 of the Act, emphasizing the compensatory aspect over the punitive aspect. Referring to the judgment in Damodar S. Prabhu Vs. Sayed Babalal H., the Court highlighted the legislative intent behind Section 138 to instill faith in banking operations and enhance the acceptability of cheques. The Court discussed the permissibility of compounding offences, especially in cheque bouncing cases, and the overriding effect of Section 147 over Section 320(9) of the Cr.P.C.The Court considered academic commentaries on the nature of the offence under Section 138, emphasizing the compensatory purpose of penalties. Guidelines were framed for imposing costs on parties delaying compounding of offences to deter prolonged litigation. The Court, based on the compromise between the parties and in line with the principles laid down in Damodar S. Prabhu, exercised revisional jurisdiction to compound the offence under Section 138, leading to the acquittal of the petitioner. However, the petitioner was ordered to deposit 15% of the cheque amount with the District Legal Services Authority due to undue delay in seeking compounding, as per the guidelines set by the Supreme Court.