TaxTMI 
TaxTMI 
2022 (5) TMI 135
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....agistrate First Class-III, Shimla, alleging therein that the accused borrowed sum of Rs. 1,90,000/- from him and with a view to discharge his liability, issued cheque for a sum of Rs. 1,90,000/- (Ext.PW1/A), but fact remains that aforesaid cheque on its presentation, was dishonoured. Since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings before the competent Court of law under Section 138 of the Act. 3. Learned trial Court on the basis of material adduced on record by the respective parties held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, vide judgment/order dated 24.6.2013/16.7.2013, convicted and sentenced him to undergo six months' simple imprisonment and pay compensation to the tune of Rs. 2,25,000/- to the complainant. 4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, accused preferred an appeal in the court of learned Additional Sessions Judge-II Shimla, District Shimla, H.P., which also came to be dismissed vide judgment dated 27.2.2015. ....
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....r under Section 147 of the Act. Mr. Ajay Sharma, also invited attention of this Court to judgment dated 1.12.2017, passed by this court in Case titled Gulab Singh v. Vidya Sagar Sharma, Latest HLJ 2017(HP) Suppl. 753, wherein this Court recalled its judgment passed in criminal revision in light of provisions contained under Section 147 of the Act, which permits compounding of the offence under Section 138 of the Act. 7. Having heard the learned counsel for the parties and perused the judgments pressed into service by the learned counsel, this Court finds that issue raised in the instant petition stands duly adjudicated by this Court in Geeta Devi's Case (Supra). It would be apt to take note of paras 11 to 15 passed in case titled Geeta Devi' s case supra: "11. Having heard learned counsel for the parties and perused the judgment dated 1.12.2017 passed by this Court in Gulab Singh case (supra), this Court finds that issue which arises in the case at hand stands duly adjudicated by this Court. It would be profitable to reproduce para Nos. 9 to 15 of the aforesaid judgment herein:- "9. Mr. Manohar Lal Sharma, learned counsel representing the petitioner, has....
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....ies and the material including the compromise entered into between the parties and the fact that the amount in dispute has been paid by the accused-petitioner to the respondent-complainant and the principles of law laid down in the aforesaid decisions, I find it a fit case in the criminal misc. application is to be allowed and the order dated 6.10.2016 is to be recalled. Consequently, the criminal misc. application is allowed and the order dated 6.10.2016 is recalled and all the orders whereby the accused-petitioner was convicted and sentenced for the offence under Section 138 of N.I. Act are set aside and as a consequence thereof he is acquitted therefrom." 10. Reliance is also placed upon the judgment passed by Hon'ble Gujarat High Court, wherein similar application came to be filed for recalling the judgment passed by the Hon'ble High Court of Gujarat. In the aforesaid judgment, Hon'ble Gujarat High Court, has reiterated that judgment passed by the High Court 8 affirming the judgment of conviction recorded under Section 138 of the Act, can be recalled in view of the specific provisions contained in Section 147 of the Act, which provides for compounding of offen....
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....view petition has been filed after withdrawal of Special Leave Petition, preferred by the applicant/ petitioner against the judgment passed by this Court in Criminal Revision No.394 of 2015, wherein conviction/ sentence awarded by the Court below came to be upheld. In the case at hand, Special Leave to Appeal (Crl.) filed by the applicant/petitioner was dismissed as withdrawn vide order dated 18.08.2017. Subsequent to passing of aforesaid order by Hon'ble Apex Court, petitioner/applicant has approached this Court, praying therein for modification/recalling of its judgment dated 10.3.2017, passed in Criminal Revision No.394 of 2015 on the ground that parties have amicably settled the matter and entire amount stands paid to the respondent/complainant in terms of judgment passed by the learned trial Court. Learned counsel representing the petitioner/applicant, contended that once the Supreme Court permits withdrawal of a Special Leave Petition without recording reasons, it is as if no appeal was ever filed or entertained, since in the absence of grant of special leave, there is no appeal in existence. Learned counsel further contended that where a Special Leave Petition is pe....
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....ling of SLP was misconceived and withdrew the same. The order records that it was "after some arguments" that the counsel for the review petitioners sought permission to withdraw the SLP. It is also not as if the Supreme Court is not known to, while dismissing the SLP as withdrawn, grant such liberty. The order thus has to be read as it is i.e., of dismissal of SLP as withdrawn. 12. Rule 9 of Order XV titled "Petitions Generally" of the Supreme Court Rules, 2013 provides for withdrawal of the petition. Once a proceeding / petition is permitted to be withdrawn, the effect of such withdrawal is as if, it had not been preferred. It is a different matter that the Rules may prohibit the petitioner who so withdraws his petition from refiling the same or even in the absence of such Rules, such refiling may be treated as an abuse of the process or by way of re-litigation. But in law a dismissal of the petition as withdrawn cannot be at par with the dismissal of the petition. 13. Neither counsel has however addressed us on this aspect and has proceeded on the premise as if dismissal as withdrawn is the same as dismissal of the petition. 14. As far as the effects, ....
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....relied on the doctrine of merger for taking the view they had taken and rather a careful reading of Abbai Maligai Partnership Firm (supra) also fortified the view taken in Kunhayammed (supra). 16. It would thus be seen that Kunhayammed (supra), though of a Bench of the same strength as Abbai Maligai Partnership Firm (supra), did not read Abbai Maligai Partnership Firm (supra) as laying down anything to the contrary than what was held in Kunhayammed (supra). The Supreme Court having expressly held so, it is not open today to the respondent UOI to contend or for us to hold that there is a conflict in the two. 17. We now proceed to analyze whether Sunil Kumar (supra) carves out any different factual scenario in which Abbai Maligai Partnership Firm and Kunhayammed (supra) operate. 18. Supreme Court in Sunil Kumar (supra) was concerned with a petitioner who was held to be a black-marketer exploiting helplessness of the poor people of the society and capable of engaging lawyers and found to be abusing the process of the Court and wanting to use the Courts as a safe haven. The subject matter of Sunil Kumar (supra) was a transaction under Section 7 of the Essenti....
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....does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non- speaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court. 27.A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special....
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....t in the merger of impugned order with the order passed by the Hon'ble Supreme Court. Now, next question which needs determination is whether this court after affirming the judgment of conviction and order of sentence recorded by court below can accept the prayer made on behalf of the accused to compound the offence while exercising power under Section 147 of the Act or not. 13. Bare perusal of Section 147 of the Act, reveals that notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), every offence punishable under this Act, shall be compoundable. Section 147 of the Act is in the nature of an enabling provision which provides for the compounding of offence prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub section (a) of Section 320 of the Code of Criminal Procedure, which otherwise state that " no offence shall be compounded except as provided by this section", since section 147 was inserted by way of an amendment to a special law, the same will override the effect of sub section (a) of section 320 of the Code of Criminal procedure. In this regard reliance is placed upon the judgment rende....
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....'ble Apex Court dismissing the SLP of the accused in limine. Though in the aforesaid case, this Court having taken note of the various judgments passed by the Hon'ble Apex Court held that doctrine of merger does not apply in the case of dismissal of the SLP in limine by non speaking order, but also decided the question "whether this court after affirming the judgment of conviction and order of sentence recorded by the court can accept the prayer made by the accused to compound the offence while exercising power under Section 147 of the Act or not." 9. This court while placing reliance upon judgment rendered by the Hon'ble Apex Court in case titled Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, has held that though Section 362 Cr.P.C provides that save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error, but aforesaid expression used in the aforesaid provision of law i.e. "save as otherwise provided by this code or by any other law for the time being in force", enables this Court to....
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....ourt can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution. 17. The High Courts in deciding matters under Section 482 should be guided by following twin objectives, as laid down in the case of Narinder Singh vs. State of Punjab (2014) 6 SCC 466: i. Prevent abuse of the process of the court. ii. Secure the ends of justice. iii. To give effect to an order under the Code. 18. In the instant case, it is true that this Court had dismissed the criminal revision and upheld the conviction and sentence passed by the court below but it cannot be lost sight of the fact that this Court has the power to intervene in exercise of the powers vested under section 482 Cr.P.C. 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 peti....
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....e High Court may in its discretion prevent the abuse of process or miscarriage of justice by exercising jurisdiction under section 482 of the Code. 22. For adjudicating the instant petition, the facts as stated hereinabove are very relevant. Here, the petitioner has attempted to invoke the jurisdiction of this court vested under section 482 Cr.P.C. The embargo of sub section 6 of section 320 Cr.P.C. as pointed out by learned AGA would not come in the way so far as the relief prayed in this petition. 23. I am not in agreement that when the adjudication of a criminal offence has reached to the state of revisional level, there cannot be any compromise without permission of the court in all case including the offence punishable under 'N.I. Act' or the offence mentioned in Table-1 (one) can be compounded only if High Court or Court of Sessions grants permission for such purpose. The Court presently, concerned with an offence punishable 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 ....
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....ithstanding anything contained in any other law for the time being in force". It appears to us that it would be a proper interpretation of the provisions of clause (b) of Section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under Section 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, but, where this is not so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permissible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. This view will, in our opinion, give proper effect to the non-obstante clause in clause (b) with due regard to its other provision that the letting value should be "reasonable" 26. 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 Indian Penal Code stands on the same footing and defines the phrase special ....