Madras High Court
R. Gurusamy vs R. Govindasamy on 21 February, 2020
Author: P. Rajamanickam
Bench: P.Rajamanickam
IN THE HIGHCOURT OF JUDICATURE AT MADRAS
Reserved on : 07.02.2020
Pronounced on : 21.02.2020
CORAM:
THE HONOURABLE MR.JUSTICE P.RAJAMANICKAM
CRL.OP.No.2719 of 2020
R. Gurusamy ...Petitioner
Vs.
R. Govindasamy ..Respondent/complainant
Prayer: Criminal Original Petition is filed under Section 482 of the
Code of Criminal Procedure to permit the petitioner and the
respondent, to compound the offence, based on the settlement
arrived between the parties, relating to the order of acquittal passed
in the judgment dated 07.02.2018 made in STC.No.54 of 2016 on
the file of the learned Judicial Magistrate (Fast Track Court No.II)
Erode, reversed and convicted in the judgment dated 28.08.2018
made in CA.No.59 of 2018 on the file of the learned II Additional
District and Sessions Court, Erode, which was confirmed by this
court in its order dated 14.03.2019 made in Crl.A.No.722 of 2018.
For Petitioner : Mr.M. Guruprasad
For Respondent : Mr. R.Sathish Kumar
ORDER
This Criminal Original Petition has been filed by the Accused to permit him and the respondent to compound the offence, based on the settlement arrived between the parties relating to the order http://www.judis.nic.in 1/16 of acquittal passed in the judgment dated 07.02.2018 made in STC.No.54 of 2016 on the file of the Judicial Magistrate (Fast Track Court No.II) Erode, reversed and convicted in the judgment dated 28.08.2018 made in C.A.No.59 of 2018 on the file of the learned II Additional District and Sessions Judge, Erode, which was confirmed by this court by the order dated 14.03.2019 in CRL.A.No.722 of 2018.
2. The respondent herein had filed a private complaint alleging that the petitioner had committed an offence punishable under Section 138 of the Negotiable Instruments Act. Based on the said complaint, the learned Judicial Magistrate (Fast Track Court No.II) Erode, has taken the case on file in STC.No.54 of 2016 and after completing trial, acquitted the petitioner herein by the judgment dated 07.02.2018. Aggrieved by the same, the respondent herein had filed an appeal in CA.No.59 of 2018 on the file of the II Additional District and Sessions Judge Erode. The learned II Additional District and Sessions Judge Erode by the judgment dated 28.08.2018, allowed the said appeal and set aside the judgment passed by the trial court and convicted the petitioner herein and sentenced to undergo six months Simple Imprisonment for the offence under Section 138 of the Negotiable Instruments http://www.judis.nic.in 2/16 Act. He also directed the petitioner herein to pay a sum of Rs.15 lakhs as compensation within two months, in default, he shall undergo one month Simple Imprisonment. As against the said judgment of conviction and sentence passed by the II Additional District and Sessions Judge Erode, the petitioner herein has filed an appeal under Section 374 (2) of Cr.P.C., in Crl.A.No.722 of 2018 before this court. This court by the judgment dated 14.03.2019 has dismissed the said Criminal Appeal and thereby confirmed the judgment of conviction and sentence passed by the learned II Additional District and Sessions Judge, Erode in CA.No.59 of 2018.
3. The present petition has been filed by the accused under Section 482 of Cr.P.C., to permit him and the respondent/complainant to compound the offence.
4. The learned counsel for the petitioner has submitted that after dismissal of the criminal appeal filed by the petitioner before this court in Crl.A.No.722 of 2018, the petitioner has been arrested and remanded to Judicial Custody on 23.01.2020 and from that date onwards, the petitioner is in jail. He further submitted that now on behalf of the petitioner, his daughter made an earnest effort and negotiated with the respondent / complainant and both the parties http://www.judis.nic.in 3/16 agreed to amicably settle the matter. In the said negotiations, both the parties come into consensus and that the respondent/complainant agreed to receive a sum of Rs.13 lakhs as full and final settlement towards the cheque amount of Rs.15 lakhs. He further submitted that since as per Section 147 of the Negotiable Instruments Act, the offence under Section 138 of the said Act is compoundable, this court by exercising the power under Section 482 of Cr.P.C., can permit the parties to compound the offence and hence he prayed to permit the petitioner and the respondent to compound the offence.
5. The learned counsel for the petitioner in support of his contentions has relied upon the following decisions of this court:-
1) D. Simpson and Others Vs. S.T.Perumal and Others, MANU/TN/0928/2014=2014-2-LW (Crl) 239, 2014 (2) MLJ (Crl)654
2) R. Sivakala Vs. D. Sethuram, 2019 (3) MadWN (Cri) 69
3) V. Deivanayagam Vs. Saravanan 2019 (3) MWN (Cr.) DCC 138 ( Mad.) http://www.judis.nic.in 4/16
6. The learned counsel for the respondent has submitted that the matter has been settled between the parties and hence he also requests to permit the parties to compound the offence and record the compromise.
7. The question now arises for consideration is that after dismissal of the Criminal Appeal in Crl.A.No.722 of 2018 by this court whether this court can entertain the petition under Section 482 Cr.P.C., to permit the parties to compound the offence and set aside the judgment passed by the first appellate court and confirmed by this court in Criminal Appeal and acquit the accused.
8. In D. Simpson and Others Vs. S.T.Perumal and Others, (cited supra), the accused was convicted by the trial court for the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo one year imprisonment with a further direction to pay Rs.4,00,000/-as compensation, in default, to undergo 3 months imprisonment. The accused preferred an appeal before the Sessions Court and the appellate court has confirmed the order of trial court. A further revision was filed before this court and the same was also dismissed, thereby confirmed the judgments of the courts below. Thereafter, the accused filed Crl.OP.No.8352 of http://www.judis.nic.in 5/16 2014 under Section 482 of Cr.P.C., before this court informing a compromise arrived at between the accused and complainant. The learned Single Judge of this court relying on the decisions in Damodar S. Prabhu Vs. Sayed Babalal H., MANU/SC/0319/2010: AIR 2010 SC and Sabu George Vs. Home Secretary, MANU/KE/0055/2007:2007 Cri.L.J.1865 allowed the said Crl.OP.No.8352 of 2014, with costs of Rs.25,000/- payable by the petitioner/accused to the Tamil Nadu State Legal Services Authority.
9. Relying on the aforesaid decision in D. Simpson and Others Vs. S.T.Perumal and Others, (cited supra), the learned Single Judges of this court in R. Sivakala Vs. D. Sethuram, (cited supra) and V. Deivanayagam Vs. Saravanan (cited supra), had allowed the petitions filed under Section 482 of Cr.P.C., and permitted the parties to compound the offence under Section 138 of the Negotiable Instruments Act even after dismissal of the Criminal Revision Cases by this court confirming the judgment of conviction and sentence passed by the trial court and first appellate court.
10. In Damodar S.Prabhu Vs. Sayed Babalal H. (cited supra), a three Judges Bench of the Hon'ble Supreme Court after http://www.judis.nic.in 6/16 taking into consideration of the provisions of Sections 138 and 147 of the Negotiable Instruments Act issued guidelines for a graded Scheme of imposing costs on parties who unduly delaying the compounding of the offence under Section 138 of the Negotiable Instruments Act. The said guidelines are as follows:
“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 7 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 http://www.judis.nic.in 7/16 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.
22. Let it also be clarified that any costs imposed in accordance with these Guidelines should be deposited with the Legal Services Authority operating at the level of the court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate’s Court or a Court of Session, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority."
11. From the aforesaid decision, it is clear that an application for compounding of the offence can be filed only before the court in which the proceedings are pending. If the Hon'ble Supreme Court thought it fit that even after exhausting all the remedies up to the Apex Court, that the accused can file a petition under Section 482 Cr.P.C., to permit him to compound the offence, for that stage also, it would have issued a guideline.
http://www.judis.nic.in 8/16
12. Another decision relied on by the learned Single Judge in D. Simpson and Others Vs. S.T.Perumal and Others, (cited supra), is in Sabu George Vs. Home Secretary, (cited supra). In that case, a learned Single Judge of the Kerala High Court in paragraph No.26 observed as follows:
“26. In the instant cases, when the revision petition was disposed of by this Court, this circumstance - that the parties settled the dispute and the complainant compounded the offence - was not there at all. It is a subsequent change in circumstance. The decision in Mostt. Simrikhia (supra) squarely applies. That was a case where an earlier application under Section 482 Cr.P.C. was dismissed, but still the Supreme Court held that a change in circumstances is sufficient to justify the invocation of the powers afresh under Section 482 Cr.P.C. notwithstanding the bar under Section 362 Cr.P.C. In the instant case, the powers under Section 482 Cr.P.C. have not been sought to be invoked earlier. Only the revisional powers were exercised. That is all the more the reason why under the changed circumstances the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. can be invoked. In the light of the dictum in Mostt. Simrikhia earlier decisions rendered and subsequent decisions, which do not refer to the said decision specifically and in which the opinion is expressed that the powers under Section 482 Cr.P.C. cannot be invoked after disposal of the revision in view of the bar under Section 362, cannot be held to lay down the law correctly.” http://www.judis.nic.in 9/16
13. Another learned Single Judge of the same High Court (Kerala High Court) expressed doubt about the correctness of the decision in Sabu George Vs. Home Secretary, and thus the matter was referred to a Division Bench. On the said reference, a Division Bench of the Kerala High Court in Sudheer Kumar @ Sudheer Vs. Manakkandi M.K.Kuntiraman (Crl.MC.No.1540 of 2007 dated 13.11.2007) held as follows:
“We are unable to accept the above view expressed in Sabu George's case, as in our opinion, no such conclusion can be made on relying on the decision of the Apex Court in Mosst. Simrikhia's case (cited supra)”
14. Finally, the aforesaid Division Bench has overruled the decision in Sabu George's case. The relevant portion is extracted hereunder:
“.......In view of the above reasons, we overrule the decision of Sabu George's Case so long as it holds that Section 482 can be invoked for accepting compounding of the offence under Negotiable Instruments Act after the conviction is confirmed in a revision by the High Court”.
15. But the aforesaid decision was not brought to the notice of the learned Single Judge of this court in D.Simpson and Others Vs. S.T. Perumal and Others.
http://www.judis.nic.in 10/16
16. In Mosst. Simrikhia Vs. Smt. Dolley Mukheerjee, AIR 1990 SC 1605: (1990) 2 SCC 437, the Hon'ble Supreme Court has held as follows:
“ If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent power in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there is no such changed circumstance and the decision has to be arrived at on the facts that existed as on the date of earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under section 362.”
17. In State of Kerala Vs. M.Manikandan Nair, AIR 2001 SC 2145, a three Judges Bench of the Hon'ble Supreme Court held as follows:-
“The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or http://www.judis.nic.in 11/16 order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed. By the first order dated 31.05.2000, the High Court rejected the prayer of the respondent for quashing the criminal proceeding. This order attained its finality. By the impugned order, the High Court reversed its earlier order and quashed the criminal proceeding for want of proper sanction. By no stretch of imagination it can be said that by the impugned order the High Court only corrected any clerical or arithmetical error. In fact the impugned order is an order of review, as the earlier order was reversed, which could not have been done as there is no such provision under the Code of Criminal Procedure, but there is an interdict against it.
This court in Hari Singh Mann versus Harbhajan Singh Bajwa & Ors. [2001 (1) SCC 169] held that Section 362 of the Criminal Procedure Code mandates that 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 an arithmetical error and that this section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by the court of competent jurisdiction.” http://www.judis.nic.in 12/16
18. In Sri Swadesh Debbarma Vs. Smt.Kamala Bangcher (Crl.Petn.No.44 of 2016), the High Court of Tripura after referring to various judgments of the Hon'ble Supreme Court and High Courts of different High Courts including the decision of this court in D.Simpson Vs.S.T.Perumal (cited supra), has observed as follows:-
“14. This court does not find any juridical basis to override the bar created by Section 362 of the Cr.P.C. for purpose of paving the way for compounding of the offence after the final judgment and order are delivered by this court. Hence, this court is constrained to observe that this endeavour for getting over the judgment and order dated 08.09.2016 passed in Crl. Rev. P. No.67 of 2014 on the basis of the purported compounding of the offence is bound to fail.”
19. Recently, the Hon'ble First Bench of this court in C.Surendhar Vs. Director General of Police, Dr.Radhakrishnan Salai, Chennai-600 004 and others (2019 4 MLJ Crl.513) in paragraph No. 27 has observed as follows:
“27. It is, therefore, clear from the ratio of the decisions referred to herein above that a judgment http://www.judis.nic.in 13/16 delivered by a court of competent jurisdiction, exercising criminal jurisdiction, cannot be altered or modified in view of the express bar under Section 362 of the Cr.P.C., except in cases of recall in the circumstances as discussed in the case of Davindra Pal Singh Bhullar ( supra)”
20. From the aforesaid decisions, it is clear that the judgment delivered by a court of competent jurisdiction exercising criminal jurisdiction cannot be altered or modified in view of the express bar under Section 362 of Cr.P.C.
21. In view of the aforesaid decisions, with great respect, I am entertaining doubt about the correctness of the decisions in D.Simpson and Others Vs. S.T. Perumal and Others (cited supra); R. Sivakala Vs. D. Sethuram, (cited supra) and V. Deivanayagam Vs. Saravanan (cited supra); Therefore, for getting authoritative pronouncement on this point, the matter has to be referred to a Division Bench.
22. For the aforesaid reasons, the Registry is directed to place this matter before My Lord, the Hon'ble The Chief Justice for referring this matter to a Division Bench for deciding the issue as to http://www.judis.nic.in 14/16 whether this court can entertain a petition under Section 482 of Cr.P.C., to permit the parties to compound the offence after dismissal of the criminal appeal/criminal revision by this court confirming the judgment of conviction and sentence passed by the courts below.
21.02.2020 Index: Yes/No Speaking Order: Yes/No gv To
1.The Judicial Magistrate (Fast Track Court No.II) Erode.
2. The II Additional District and Sessions Court, Erode. http://www.judis.nic.in 15/16 P. RAJAMANICKAM., J.
gv Pre-delivery Order made in CRL.OP.No.2719 of 2020 21.02.2020 http://www.judis.nic.in 16/16