TaxTMI 
TaxTMI 
2021 (8) TMI 728
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....er) under section 138 of the Negotiable Instrument Act (for short 'N.I. Act'). After the completion of the trial, the court has convicted the petitioner and sentenced him one year simple imprisonment and fine of Rs. 3,00,000/- (Rupees three lakhs) vide judgment and order dated 27.11.2019. Being aggrieved the petitioner had preferred a Criminal Appeal No.01 of 2020 before the Additional Sessions Judge, Faizabad and at the time of hearing the appeal, the petitioner had deposited Rs. 1,00,000/- (one lakh) before the Additional Sessions Judge, Faizabad, ultimately the appeal had been dismissed vide order dated 14.12.2020 against which the petitioner has preferred a Criminal Revision No.664 of 2020 before this Hon'ble Court which too had been dismissed at the admission stage vide order dated 18.12.2020. After the dismissal of the criminal revision, the complainant/opposite party no.2 and the petitioner have entered into settlement through his father and is ready to make payment of rest of Rs. 2,00,000/- (Two Lakhs) by means of Demand Draft No.374901 of State Bank of India to opposite party no.2. On 22.01.2021 the petitioner and the opposite party no.2 have amicably entered i....
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....s 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 amoun....
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....f imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases. (v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances. 6. Learned counsel for the petitioner ....
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....rt in case of Rajendra Prasad (supra) was dealing with a case related to first part of section 482 Cr.P.C. but, when it comes to third part, the approach should remain more pragmatic and indirect relegation to Supreme Court, if legally possible, can be prevented. 31. In the circumstances, it is hereby declared that the compromise arrived between the parties to this litigation out of court is accepted as genuine and the order of conviction and sentence passed by the learned JMFC, Vadodara and confirmed in appeal by the learned Sessions Judge, Fast Track Court, Vadodara, therefore, on the given set of facts are hereby quashed and set aside as this court intends, otherwise to secure the ends of justice as provided under section 482 Cr.P.C. Obviously the order disposing Revision Application would not have any enforceable effect. 7. Learned counsel has also relied upon the judgment of Hon'ble the Apex Court in the case of Vinay Devanna Nayak vs. Ryot Seva Sahkari Bank Limited reported at AIR 2008 SC 716 wherein the Hon'ble Apex Court has held as under : "18. Taking into consideration even the said provision (Section 147) and the primary object underlying Sec....
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....n opportunity of hearing and at that stage the High Court again heard the matter and added a postscript in the judgment confirming the conviction and sentence. The petitioner thereafter had moved the High Court for a compromise to compound the offence. It was submitted to the High Court that the accused has paid a sum of Rs. 3,500/- to the complainant and the learned Counsel for the complainant confirmed of having received the amount of Rs. 3,500/- in token of the compromise arrived between the parties. In Para 1 of the cited decision the Apex Court has observed that ".......... but the High Court did not and indeed could not take into consideration that application since it has deposed of the matter already." 10. Learned AGA has also submitted that when this Court has already rejected the revision application on merits, whether the parties or any one of them can be permitted to place compromise and to get an order of acquittal from the very Court, is the question. Therefore, in more than one decisions, the Hon'ble Apex Court has observed that the petition invoking inherent powers under section 482 Cr.P.C. is not maintainable when the earlier revision application filed under....
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.... 4) (a) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may, with the permission of the Court, compound such offence. (b) When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908 (5 of 1908) of such person may, with the consent of the Court, compound such offence. 5) When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or as the case may be, before which the appeal is to be heard. 6) A High Court or Court of Session acting in the exercise of its powers of revision under Section 401 may allow any person to compound any offence which such person is competent to compound under this section. 7) No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a puni....
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....rty 4. That the dispute between the parties is private in nature. 5. That it is further agreed between the parties that neither of the parties shall file any complaint/ suit/ petition/ FIR and/or any other proceedings before any court of law/any authority for the same offence. Both the parties undertake that there is no other complaint/ petition/ suit/ FIR pending against each other of the same dispute and if the same is found, the same compromised Agreement." shall in stand null and void and terms of this "Settlement 6. That the Second Party shall make no further complaint/ First Information Report against First Party or his family members regarding the said bounced cheques, this clause shall be an exception for any other fresh cause of action(s) or activity(s). 7. That both the Parties shall assist each other in prudently pursuing the petition to quash the judgment dated 27.11.2019 passed by Additional Court, Faizabad and subsequent judgment passed by Additional District Judge, Court 110. 10, Faizabad incriminal appeal no. 01/2020 and other subsequent proceeding (s) and shall appear in the concerned Court as and when necessary and required to r....
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....only with a view to do the substantial justice or to avoid miscarriage and the spirit of the compromise arrived at between the parties. This is perfectly justified and legal too. 19. I have considered the judgments cited by the learned counsel for the petitioner as well as by the learned Counsel for the State and other decisions of the Hon'ble Apex Court and I do not think it necessary to enlist those decisions which are taken into consideration for the purpose of the present proceedings. 20. In the instant case, the petitioner is invoking the inherent power as vested under section 482 Cr.P.C. after the dismissal of the revision petition under section 397 Cr.P.C. read with section 401 Cr.P.C. In this circumstances, I have to examine the maintainability of the present petition under section 482 Cr.P.C. and also to examine as to whether for entertaining the aforesaid petition, any special circumstances are made out or not. The gist of the ratio is reflected in the decision of the Hon'ble Apex Court in the case of Rajinder Prasad vs. Bashir and Others; AIR 2001 SC 3524. In that case, it was contended before the Apex Court that as per the earlier revision filed by the acc....
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....under 'N.I. Act'. 24. 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 I can refer to the following extracts from an academic commentary [Cited from : K.N.C. Pillai, R.V. Kelkar's Criminal Procedure, 5th Edition : "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 recognize some of them as compoundable offences and some others as compoundable only with the permission of the court..." 25. Section 147 of NI Act begins with a non obstante clause and such clause is being used in a provision to communicate that the provision shall prevail despite anything to the contrary in any other or different legal provisions. So, in light of the compass provided, a dispute in the nature of complaint under section 138....
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....on of law, which is not applicable generally but which applies to a particular or specific subject or class of subjects. Section 41 of Indian Penal Code 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." 27. 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....
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....ve 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. 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, 181 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) xxxxxx (ii) xxxxxx (iii) xxxxxx (iv) to prescribe procedure for....
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.... resolve their dispute, furthermore, the arguments on behalf of the opposite parties on the fact that unlike Section 320 Cr.P.C., Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court. 34. I am also conscious of the view that judicial endorsement of the above quoted guidelines as given in the case of Damodar S. Prabhu (supra) could be seen as an act of judicial law making and therefore an intrusion into the legislative domain. It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. I have already explained that the scheme contemplated under Section 320 of the Cr.P.C. cannot be followed in the strict sense. 35. In view of the aforesaid discussion, 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. The complainant i.e. the person or persons affected can pray to the court that the accused, on compounding of the offenc....