Gujarat High Court
Isubkhan Juzarkhan Pathan vs State Of Gujarat on 2 April, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/2491/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2491 of 2018
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ISUBKHAN JUZARKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR M T SAIYAD(3848) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2
MS MOXA THAKKAR, APP (2) for the RESPONDENT(s) No. 1
MR IMRAN PATHAN, ADVOCATE for the RESPONDENT No.2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/04/2018
ORAL ORDER
RULE returnable forthwith. Ms.Moxa Thakkar, the learned APP, waives service of notice of rule for and on behalf of the respondent no.1 - State of Gujarat. Mr.Imran Pathan, the learned counsel waives service of notice of rule for and on behalf of the respondent no.2 - original complainant.
By this application under Article 227 of the Constitution of India, the applicant - original accused has prayed for the following reliefs :
"(A) Your Lordships be pleased to issue appropriate writ, order or direction and be pleased to call for the records and proceedings of the Criminal Appeal No.3 of 2016 from the Court of Ld. Addl. Sessions Judge, Mahesana and Criminal Case No.4109 of 2013 from the Court of Ld. 3rd Additional Chief Judicial Magistrate, Mahesana along with the orders passed thereon, and after perusing the same be pleased to quash and set aside the impugned judgment and order Page 1 of 18 R/SCR.A/2491/2018 ORDER dated 22nd September 2017 and 15th December 2015 respectively in the interest of justice;
(B) Pending admission, hearing and final disposal of this application, Your Lordships be pleased to stay the warrant issued by the Ld. Trial, Mahesana in Criminal Case No.4109 of 2013 in the interest of justice;
(C Your Lordships be pleased to grant such other and further relief(s) as are deemed fit, just and proper in the facts and circumstances of the case in the interest of justice."
It appears from the materials on record that the respondent no.2 lodged a complaint against the applicant herein for the offence punishable under Section 138 of the Negotiable Instruments Act. The proceedings of the Criminal Case No.4109 of 2013 ended with a judgment and order of conviction passed by the 3rd Additional Chief Judicial Magistrate, Mehsana, dated 15th December 2015.
The applicant, being dissatisfied with the judgment and order of conviction, preferred the Criminal Appeal No.3 of 2016 in the Sessions Court at Mehsana. The appellate court, by judgment and order dated 22nd September 2017, dismissed the appeal, thereby affirming the judgment and order of conviction passed by the trial Court.
It appears that at the time when the appellate court dismissed the appeal, the accused was not present, and in such circumstances, the appellate court issued warrant of arrest. Before the warrant of arrest could be executed, a settlement has been arrived at between the complainant and the applicant.
The affidavit of the respondent no.2 is ordered to be taken on record. The same reads as under :
Page 2 of 18R/SCR.A/2491/2018 ORDER "I, Harshadkumar Nathalal Patel, aged : years, the
respondent no.2 herein above, do hereby state and declare on oath and solemnly affirm as under :
1. I respectfully submit that I am the original complainant in the criminal case under section 138 of the Negotiable Instruments Act, being Criminal Case No.4109 of 2013. I say and submit that upon intervention of trusted persons of the society I have amicably settled the matter by way of compromise with applicant/ original accused and hereby undertake to withdraw all the litigations pending against the applicant.
2. I respectfully say and submit that I have already received the entire cheque amount i.e. Rs.50,000/- from the applicant herein. I further submit that I have also submitted a pursis before the Ld. Appellate Court on 08/07/2017 and shown my willingness not to prosecute the applicant herein. That the dispute between us is of a personal nature and not an offence against the society. I further submit that the dispute between the parties is resolved and there is no surviving grievance. The settlement arrived between us would be binding to me/my legal representative with respect to this proceedings being Criminal Case No.4109 of 2013 and order dated: 15/12/2015 passed thereon for all time to come in future. I have settled this matter without any coercion or force from the applicant herein.
3. I respectfully say and submit that I am submitting my consent for quashing of the judgments and orders passed by the Ld. Trial Court as well as Ld. Appellate Court. I say and submit that I have no objection if the said orders are quashed by this Hon'ble Court by way of allowing the present petition.
4. I say and submit that I have settled the dispute with the applicant and therefore in the interest of justice and to lessen the hardship of the parties, I agree to quash the judgments and orders passed by both the Courts below.
5. I respectfully submit that the affidavit tendered by me has been made voluntarily and without any force or influence and the same need to be considered at the time of deciding the present application."Page 3 of 18
R/SCR.A/2491/2018 ORDER Mr.Imran Pathan, the learned counsel appearing for the complainant, submitted that the entire cheque amount has been paid by the applicant to his client.
The question before me is, whether it is permissible for me to record the settlement and quash the judgment and order of conviction passed by the trial Court and affirmed by the appellate court.
This issue is no longer res integra in view of the decision of this Court in the case of Kripalsingh Pratapsingh vs. Salvinder Kaur Hardisingh Lohana, (2004)2 GLH 544. A learned Single Judge of this Court, after considering various decisions of the Supreme Court and the provisions of the Act more particularly section 147 of the Act, took the view that it would be permissible for the High Court in exercise of its inherent powers under section 482 of the code to recall its earlier order and record the settlement arrived at between the parties and acquit the accused of the charge.
I may quote the observations made by the learned Single Judge as contained in paragraphs-14 to 33.
14. The resistance placed by learned APP Ms. Nandini Joshi is that in view of the provisions of sub-section 6 of Section 320 Cr.P.C.. and the observations made by the Apex Court in the case of Tanveer Aquil v. State of Madhya Pradesh & anr. reported in 1990 (supp) SCC 63 the parties should be relegated to the Apex Court to initiate appropriate proceedings to get the actual effect of compromise arrived at between the parties. In the case of Tanveer Aquil (supra) the appellant was convicted under Section 324 IPC and was ordered to suffer R.I. for one year and to pay a fine of Rs.
Page 4 of 18R/SCR.A/2491/2018 ORDER 500/-. After the pronouncement of the judgment by the High Court the learned counsel appeared and pleaded for an 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. 3500/- to the complainant and the learned counsel for the complainant confirmed of having received the amount of Rs.3500/- 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 disposed of the matter already"
15. So, it is the say of learned APP Ms. Joshi that when this Court has already rejected the revision application on merits 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 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 Section 397 Cr.P.C. read with Section 401 Cr.P.C seeking same or similar relief, when dismissed on merit, or has not pressed. However, in the same way the Apex Court has observed in more than one cases that such petitions, though otherwise, are not maintainable, can even be entertained when special circumstances are made out. These observations are in reference to third part of Section 482 of Cr.P.C.
16. I have considered the decisions cited by the learned counsel for the respective party and some other decisions of the 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. But ultimately one balanced principle has emerged that the petitions invoking inherent powers under Section 482 Cr.P.C. after dismissal/disposal or revision application under Section 397 Cr.P.C. read with Section 401 Cr.P.C., are not maintainable by the same party, more so when no special circumstances are made out. The Page 5 of 18 R/SCR.A/2491/2018 ORDER gist of this ratio is reflected in the decision reported in AIR 2001 SC 3524 in the case of Rajinder Prasad v. Bashir and ors. It was contended before the Apex Court that as the earlier revision petition filed by the accused persons under Section 397 of the Code has been rejected by the High Court vide order dated 13-7-1990, they had no right to file the petition under Section 482 of the Code with prayer for quashing the same order. While dealing with the above contention the Apex Court observed that "...We do not agree with the arguments of the learned counsel for the respondents that as the earlier application had been dismissed as not pressed, the accused had acquired a right to challenge the order adding the offence under S. 395 of the Code. ..." (i.e. IPC) It is further observed that "We are of the opinion that no special circumstances were spelt out in the subsequent application for invoking the jurisdiction of the High Court under Section 482 of the Code and the impugned order is liable to be set aside on this ground alone...."
17. So can be legitimately argued and inferred and held that in all cases where the petitioners are able to satisfy this Court that there are special circumstances which can be clearly spelt out, subsequent application invoking inherent powers under Section 482 Cr.P.C. can be moved and cannot be thrown away on the technical argument as to its sustainability. The Apex Court 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.
18. In the case of Krishnan v. Krishnaveni reported in (1997) 4 SCC 241 the Apex Court has held that though the inherent power of the High Court is very wide, yet the same must be exercised sparingly and cautiously particularly in a case Page 6 of 18 R/SCR.A/2491/2018 ORDER where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may in its discretion prevent the abuse of process or miscarriage of justice by exercising jurisdiction under Section 482 of the Code.
19. For the purpose of the present decision, the facts stated hereinabove are very relevant. On 12-12-2003 one adjournment or issuance of notice for verification of factum of actual negotiation/compromise and date of payment, could have prevented the failure of judicial mechanism and a person who is already an accused convict who has compounded the offence, but was arranging the actual payment could have obtained the order of acquittal and avoided formal order of confirmation of conviction practically at the last stage of litigation. Whether formal payment could have been deferred under courts order is also a question.
20. Here, the petitioners have also simultaneously attempted to invoke the jurisdiction of this court vested under Article 226 of the Constitution of India read with Section 482 Cr.P.C. So both the petitioners, in stricto senso the accused and the complainant, are not under obligation Section 482 of Cr.P.C. So the present petitioners stand on a better legal footing.
21. The embargo of sub-section 6 of Section 320 Cr.P.C. pointed out by Ms. Joshi learned APP would not come in the way so far as the relief prayed in both the petitions are concerned. I would like to reproduce the relevant part of Section 320 of Cr.P.C:
"320 (1) The offences punishable under the sections of the Indian Penal Code specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that table.
(2) The offences punishable under the sections of the Indian Penal Code specified in the first two columns of the Table next following may, with the permission of Page 7 of 18 R/SCR.A/2491/2018 ORDER the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that Table. (3)...
(4)...
(5)...
(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."
22. 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 cases including the offence punishable under NI 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 NI Act. So it is relevant to quote Section 147 of the NI Act, "147. Offences to be compoundable. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable"
23. 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 of NI Act, can be settled by way of compromise irrespective of any other legislation including Cr.P.C. in general and Section 320 (1)(2) OR (6) of the Cr.P.C. in particular. The scheme of Section 320 Cr.P.C. deals mainly with procedural aspects; but it simultaneously crystallizes certain enforceable rights and obligation. So this provision has an element of substantive legislation and therefore, it can be said that the scheme of Section 320 does not lay down only procedure; but still, the status of the scheme remains under a general law of procedure and as per the accepted proposition of law, the special law would prevail over general law. It is not necessary to enlist the Page 8 of 18 R/SCR.A/2491/2018 ORDER authorities propounding this proposition of law available on this point. But for the sake of convenience, I would like to quote what the Apex Court has stated in the case of Municipal Corporation, Indore v. Ratnaprabha reported in AIR 1977 SC 308 where the Apex Court was dealing with similar principle and proposition of law of interpretation while dealing with the language of non obstante clause on the question of construction, it has been observed that "As has been stated, clause (b) of Section 138 of the Act provides that the annual value of any building shall "notwithstanding anything contained in any other law for the time being in force" be deemed to be the gross annual rent for which the building might "reasonably at the time of the assessment be expected to be let from year to year" While therefore, the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be so "notwithstanding 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".
Though the facts are materially different the ratio can be applied. The observations for similar clause made by the Apex Court in the case of Makbul Singh v. State of Punjab reported in AIR 1999 SC 1131 are also relevant for our purpose; wherein the Apex Court has stated that non obstante clause in Section 32(a) of the Page 9 of 18 R/SCR.A/2491/2018 ORDER NDPS Act has overriding effect on powers of suspension, commutation and remission provided under the Cr.P.C.
24(i). 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 law . Sometimes, a particular act or part of a procedural law may be considered as general and can be given effect to with reference to some act. But it may be special with reference to other act.
24(ii). In this connection I would like to quote the well accepted proposition of law emerging from various observations made by the Apex Court in different decisions as a gist of the principle and it can be summarised that, "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."
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 NI Act. On the contrary provisions of Section 147 of NI 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.
24(iii). The submission of Ms. Joshi learned APP, if considered in this perspective, then also, it would be difficult to accept that sub-section 6 of Section 401 of Cr.P.C. shall have an overriding effect or prevailing effect over the intention of the legislature reflected in Section 147 of NI Act and it would not be legal to hold that merely because the litigation has reached to the stage of revision, grant of previous permission by the court to place the compromise on Page 10 of 18 R/SCR.A/2491/2018 ORDER record and to compound the offence, is a condition precedent.
24(iv). The Apex Court, while dealing with Section 41 of Indian Penal Code in the case of Kaushalya Rani v. Gopal Singh reported in AIR 1964 SC 260 has observed that the expression 'general law and 'special law are relative terms and referred to a particular subject dealt with by respective act so that it is not possible logically to label any set of laws as being general laws or special law. The stamp law contained in the Stamp Act will come under description of a special law in relation to crime in connection with the said law. But still, the law as regards Stamp Act will be a general law. The court is aware that the expression 'special law defined in Section 41 of Indian Penal Code cannot be taken to mean only enactment which creates fresh offences not made punishable under the Indian Penal Code. But undisputedly the offence made punishable under Section 138 NI Act is a subject not specifically dealt with by Indian Penal Code. The liabilities created by Sections 138,139,141 and 143 of NI Act are in contemplation with an offence otherwise not contemplated by Indian Penal Code. In this background, Section 147 of NI Act would prevail over the scheme including sub-section 6 of Section 320 of Cr.P.C.
25. The offence punishable under Section 138 NI Act is not an economic offence within the meaning of the economic offence so far as the applicability of Limitation Act 1974 , but still it is an offence falling within the compass of offences against property within the meaning of Chapter XVII of Indian Penal Code. Without entering into the point whether existence of mens rea is required to be brought on record legally to bring home the charge against the accused of the offence under Section 138 of NI Act, at least can be inferred that the intention of legislature while inserting Section 147 of the NI Act was clear that the aggrieved party can compound the offence. On a plain reading of Section 147 of NI Act, it is clear that the same does not confer any obligation to obtain permission for entering into a compromise or to compound the offence.
26. 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 Page 11 of 18 R/SCR.A/2491/2018 ORDER it would be wrong to hold that at revisional stage, the nature of offence punishable under Section 138 of the NI Act should be treated as if the same is falling under table-II of Section 320 IPC. It will be difficult to accept the proposition put forward by Ms. Joshi learned APP that even if the offence made punishable under IPC and reference to Section 1 of Section 320, i.e. table I shown in Section 320 Cr.P.C. it cannot be compounded without prior permission. I would like to reproduce some part of the statement of objects and reasons of the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act 2002:
"Negotiable Instruments Act 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments 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 Instruments Act, 1981, namely, Sections 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. A large number of cases are reported to be pending under Sections 138 to 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 Page 12 of 18 R/SCR.A/2491/2018 ORDER representations, it has been decided to bring out, inter alia the following amendments in the Negotiable Instruments Act, 1881, namely.
(i) xxxxx
(ii) xxxxx
(iii) xxxxx
(iv) to prescribe procedure for dispensing with preliminary evidence of the complainant.
(v)
(vi)
(vii) to make the offences under the Act compoundable.
........
5. xxxxx
6. The Bill seeks to achieve the above objects."
27. The country is under the process of and progress towards globalization. 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 & Miscellaneous Provisions) Act, 2002 leads this Court to a conclusion that the offence made punishable under Section 138 of NI 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. referred to hereinabove. So the parties, in reference to offence under Section 138 NI 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 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 the amount of compensation if awarded, as per the scheme of NI 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. read with Article 226 of the Constitution of India.
28(i). If such interpretation is made that even after conclusion of all the proceedings, a criminal case can be compounded then whether it would open pandora box and would bring multiple proceedings ? One also can pause a question that such interpretation of law by the court and exercise of Page 13 of 18 R/SCR.A/2491/2018 ORDER inherent powers, would take the accused-defaulter to fight out the litigation till the last stage and thereafter the defaulter accused can ask to accept compromise in the matter and in the circumstances whether this would be a healthy situation when the society is craving for and trying to carve out a value based life to one and all ? These questions are all ifs and buts. Courts of this country have efficiently dealt with such hypothetical situations. This and such other contingencies can be taken care of if the purpose of enacting the law is to be achieved in true perspective. When a substantive petition is brought in such a situation or contingency, then the court at the relevant point of time can positively insist that either the complainant or the person authorised by the complainant victim of criminal wrong should be a party petitioner to such petition or at least a party respondent supporting the say of the petitioner that the grievance is settled to the satisfaction and the convict may be either acquitted or released from the prison or any other appropriate order may be passed.
28(ii). Technically speaking, in such an eventuality, the fine imposed, if not paid to the State or the same is required to be refunded to the person released or acquitted on compounding the offence, then the court while passing orders dealing with such petitions, the parties can be fasten with the liability of costs for the contingency created by them in protracting the litigation and not compounding the offence at appropriate stage. Thus, at appropriate stage, the court can take care of the fact situation while dealing with such petitions/revisions pending in the Civil Court qua the same transaction.
29. The court is aware about one accepted principle of law and the principle governing the concept of judicial restrain that unless the court is asked to answer a particular point, normally the court should not venture to deal with the points which are not raised by any of the parties. But when the court was dealing with the said two Special Criminal Revision Applications certain queries were put during hearing to the learned counsel appearing for the parties and the points discussed were a matter of discussion in reference to sub-section 6 of Section 320 Cr.P.C., Section 147 of NI Act and the jurisdiction of this Court under Section 482 of Cr.P.C read with Article 226 of the Constitution of India. The court is Page 14 of 18 R/SCR.A/2491/2018 ORDER also aware of other principle of law that when a thing is required to be done in a particular way (provided under a law or rules framed there under) then it should be done in that manner only. But when the jurisdiction of this Court being very wide under Article 226 of the Constitution of India read with third part of Section 482 Cr.P.C. the court can bring legal resolution. If all 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 this Court to think and reach to a conclusion that it can be considered and looked into as one of such special circumstances especially when grant of previous permission to enter into compromise for the purpose of compounding offence is not made a condition precedent in Section 147 of NI Act. Of course, the parties compounding the offence under Section 138 of NI Act obviously are bound to satisfy the conscious of the court on facts, when the jurisdiction under Article 226 of the Constitution of India read with Section 482 Cr.P.C. is invoked with readiness and willingness to pay the reasonable amount of costs, if awarded while dealing with such petitions.
30. The court is inclined to hold accordingly only because there is no formal embargo in Section 147 NI Act. So this principle would not help any convict in any other law where other applicable independent provisions are existing as the offence punishable under Section 138 of the NI Act is distinctly different from the normal offences made punishable under Chapter XVII of IPC (i.e., the offences qua property).
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.
Page 15 of 18R/SCR.A/2491/2018 ORDER
32. In view of the above, the accused-Salvinder Kaur Harditsingh Lobana shall not be under obligation to surrender to the jail authorities and shall be treated as acquitted on account of compounding of the offence with the complainant/person affected.
33. Accordingly, both the petitions are required to be allowed and they are allowed. Rule made absolute in both the petitions in the above terms. Both the petitioners shall pay costs of Rs.2500/- (two thousand five hundred) each to the Respondent-State.
My attention is also drawn by the learned advocates appearing for the respective parties to a decision of the Supreme Court in the case of K.Subramanian v. R.Rajathi, (2010)15 SCC 352, wherein the petitioner was convicted under section 138 of the Act and was sentenced to undergo simple imprisonment of one year and fine. His appeal before the Sessions Court and Revision before the High Court as also his SLP was also dismissed. The accused, thereafter, preferred a review petition before the Supreme Court seeking permission to compound the offence and acquit him by setting aside conviction in view of the compromise arrived at between the parties.
I my quote the relevant observations of the Supreme Court as found in paras 6,7 and 8 as under :
"6. Thereafter a compromise was entered into and petitioner claims that he has paid Rs.4,52,289/- to respondent. In support of this claim, the petitioner has produced affidavit sworn by him on December 1, 2008. The petitioner has also produced affidavit sworn by P.Kaliappan, Power of Attorney holder of R.Rajathion December 1, 2008 mentioning that he has received a sum of Rs.4,52,289/- due under the dishonoured cheques in full discharge of the value of Page 16 of 18 R/SCR.A/2491/2018 ORDER cheques and he is not willing to prosecute the petitioner.
7. The Learned Counsel for the petitioner states at the bar that the petitioner was arrested on July 30, 2008 and has undergone the sentence imposed on him by the Trial Court and confirmed by Sessions Court, High Court as well as by this Court. The two affidavits sought to be produced by petitioner as additional documents would indicate that indeed a compromise has taken place between petitioner and the respondent and the respondent has accepted the compromise offered by petitioner pursuant to which he has received a sum of Rs.4,52,289/-. In the affidavit filed by the respondent a prayer is made to permit the petitioner to compound the offence and close the proceedings.
8. Having regard to the salutary provisions of Section 147 of Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, this Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code."
In view of the fact that the parties have amicably settled the dispute and the entire cheque amount has been paid to the complainant and accepted willingly, there should not be any difficulty now in exonerating the applicant.
In the circumstances, it is hereby declared that the compromise arrived at between the parties to this litigation out of the court is accepted as genuine and the order of conviction and sentence passed by the 3rd Additional Chief Judicial Magistrate, Mehsana, dated 15th December 2015, in the Criminal Case No.4109 of 2013 is hereby ordered to be quashed and set-aside. Consequently, the judgment and order dated 22nd September 2017 passed by the learned Sessions Judge, Mehsana, in the Criminal Appeal No.3 of 2016 is also hereby quashed and set-aside.
Page 17 of 18R/SCR.A/2491/2018 ORDER The warrant of arrest, if any, issued by the trial Court stands cancelled.
This petition is, accordingly, allowed. Rule made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 18 of 18