Delhi District Court
Dys Implex Pvt Ltd vs The State on 13 November, 2024
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
CR No.105/2024
1. DYS Impex Pvt.Ltd.
At 58D, Netaji Subhash Road,
2nd Floor, Room No.317,
Kolkata, Pin-700001
2. Dinesh Kumar Jalan
S/o Late Atma Ram Jalan,
At FD-23, Sector-III, Salt Late City,
Kolkata-700094
.... Revisionists
Vs.
1. State
2. Rakesh Dhingra
S/o late A.S. Dhingra
At H.No.11, Gali No.6, Block-5
Geeta Colony, Delhi-110031 .... Respondents
Date of Institution : 07.05.2024
Arguments heard : 13.11.2024
Date of order : 13.11.2024
ORDER
1. This revision petition has been filed U/s 397 Cr.P.C. against the impugned order dated 30.03.2024 passed by Ld. MM (MCD)/East, KKD Courts, Delhi in CC No.367/2018 titled as Rakesh Dhingra vs M/s DYS Impex Pvt. Ltd. & Anr . Vide the said order, the adjournment sought by the accused was disallowed and a cost of Rs.4000/- was imposed upon the accused which was to be paid to the complainant. In addition Ashish to which, an application for compounding which was moved Rastogi Digitally signed by Ashish Rastogi Date: 2024.11.13 16:24:11 +0530 CR No.105/2024 DYS Impex Pvt. Ltd. Vs State & Anr. 1 of 7 by the accused was taken on record and thereafter, matter was listed for appearance of accused and consideration of notice on 30.03.2024.
2. Today, Ld. Counsel for revisionist submitted that they have already paid Rs.11,40,000/- towards the liability of the cheque amount which was Rs.10 lakhs. It is further submitted that since the respondent/complainant has been compensated, revisionist's application for compounding ought to have been considered but the same has not been considered by the Ld. Trial Court. It is further submitted that not even an order with respect to the same has been passed. At least a reply from the respondent/complainant should have been sought by the Ld. Trial Court so that the application could have been considered keeping into the possibility of the compounding.
3. Ld. Counsel for respondent submitted that Rs.11,40,000/-
have, in fact, been received but the same are with respect to another transaction and are not towards satisfaction of liability of this case so as to enure in relation to the cheques in question.
4. Nevertheless, Ld. Counsel for respondent has no objection if the application for compounding filed by the revisionist is considered by the Ld. Trial Court.
5. I have heard the submissions of both the parties and perused the TCR. At the outset, it must be mentioned that the claim of the party in respect to how much amount has been paid by the Revisionist in relation to the dishonored cheques, is the matter of trial and same cannot be considered by this Court in the Digitally signed by Ashish Ashish Rastogi Rastogi Date:
CR No.105/20242024.11.13 16:24:19 +0530 DYS Impex Pvt. Ltd. Vs State & Anr. 2 of 7 instant revision.
6. Be that as it may, the application of compounding was moved by the revisionist/accused but the same has not been considered by the Ld. Trial Court. In the case of Raj Reddy Kallen vs State of Haryana & Anr [2024] 5 S.C.R. 203 , the Hon'ble Supreme Court held:
11. As per section 147 of the NI Act, all offences punishable under the Negotiable Instruments Act are compoundable. However, unlike Section 320 of CrPC, the NI Act does not elaborate upon the manner in which offences should be compounded. To fill up this legislative gap, three Judges Bench of this Court in Damodar S. Prabhu v. Sayed Babalal H. (2010) 5 SCC 663, passed some guidelines under Article 142 of the Constitution of India regarding compounding of offence under Section 138 of NI Act. But most importantly, in that case, this Court discussed the importance of compounding offence under Section 138 of the NI Act and also the legislative intent behind making the dishonour of cheque a crime by enacting a special law. This Court had observed that:
"4. .............What must be remembered is that the dishonour of a cheque can be best described as a regulatory offence that has been created to serve the public interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the private parties involved in commercial transactions.
5. Invariably, the provision of a strong criminal remedy has encouraged the institution of a large number of cases that are relatable to the offence contemplated by Section 138 of the Act. So much so, that at present a disproportionately large number of cases involving the dishonour of cheques is choking our criminal justice system, especially at the level of Magistrates'Courts........"
Further, after citing authors pointing towards Digitally signed by Ashish Ashish Rastogi Rastogi Date:
2024.11.13 16:24:26 +0530 CR No.105/2024 DYS Impex Pvt. Ltd. Vs State & Anr. 3 of 7 compensatory jurisprudence within the NI Act, this Court observed that:
"18. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect."
12. This Court has time and again reiterated that in cases of section 138 of NI Act, the accused must try for compounding at the initial stages instead of the later stage, however, there is no bar to seek the compounding of the offence at later stages of criminal proceedings including after conviction, like the present case (See: K.M Ibrahim v. K.P Mohammed & Anr. (2010) 1 SCC 798 and O.P Dholakia v. State of Haryana & Anr. (2000) 1 SCC 762).
In the case at hand, initially, both sides agreed to compound the offence at the appellate stage but the appellant could not pay the amount within the time stipulated in the agreement and the complainant now has shown her unwillingness towards compounding of the offence, despite receiving the entire amount. The appellant has paid the entire Rs.1.55 crore and further Rs.10 lacs as interest.
As far the requirement of 'consent' in compounding of offence under section 138 of NI Act is concerned, this Court in JIK Industries Limited & Ors. v. Amarlal V. Jamuni & Anr. (2012) 3 SCC 255 denied the suggestion of the appellant therein that 'consent' is not mandatory in compounding of offences under Section 138 of NI Act. This Court observed that:
"57. Section 147 of the Negotiable Instruments Act reads as follows:
"147.Offences to be compoundable.-- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under Digitally signed by Ashish Ashish Rastogi Rastogi Date:
2024.11.13 16:24:33 +0530 this Act shall be compoundable."
CR No.105/2024 DYS Impex Pvt. Ltd. Vs State & Anr. 4 of 7
58. Relying on the aforesaid non obstante clause in Section 147 of the NI Act, the learned counsel for the appellant argued that a three-Judge Bench decision of this Court in Damodar [(2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] , held that in view of non obstante clause in Section 147 of the NI Act, which is a special statute, the requirement of consent of the person compounding in Section 320 of the Code is not required in the case of compounding of an offence under the NI Act.
59. This Court is unable to accept the aforesaid contention for various reasons......"
Further this Court observed in para 89 of the said judgement that:
"Section 147 of the NI Act must be reasonably construed to mean that as a result of the said section the offences under the NI Act are made compoundable, but the main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of the NI Act."
This Court in Meters and Instruments private Ltd. And Another. v. Kanchan Mehta (2018) 1 SCC 560 after discussing the series of judgments including the JIK Industries Ltd. (supra) observed that even in the absence of 'consent' court can close criminal proceedings against an accused in cases of section 138 of NI Act if accused has compensated the complainant. The exact words of this Court were as follows:
"18.3. Though compounding requires consent of both parties, even in absence of such consent, the court, in the interests of justice, on being satisfied that the complainant has been Digitally duly compensated, can in its discretion close signed by Ashish Ashish Rastogi Rastogi Date:
2024.11.13 16:24:54 CR No.105/2024 DYS Impex Pvt. Ltd. Vs State & Anr. 5 of 7 +0530 the proceedings and discharge the accused."
In our opinion, Kanchan Mehta (supra) nowhere contemplates that 'compounding' can be done without the 'consent' of the parties and even the above observation of Kanchan Mehta (supra) giving discretion to the trial court to 'close the proceedings and discharge the accused', by reading section 2581 of CrPC, has been held to be 'not a good law' by this Court in the subsequent 5 judges bench judgement in Expeditious Trial of Cases Under Section 138 of NI Act, 1881, In re, (2021) 16 SCC 1162 2.
All the same, in this particular given case even though the complainant has been duly compensated by the accused yet the complainant does not agree for the compounding of the offence, the courts cannot compel the complainant to give 'consent' for compounding of the matter. It is also true that mere repayment of the amount cannot mean that the appellant is absolved from the criminal liabilities under Section 138 of the NI Act. But this case has some peculiar facts as well. In the present case, the appellant has already been in jail for more than 1 year before being released on bail and has also compensated the complainant. Further, in compliance of the order dated 08.08.2023, the appellant has deposited an additional amount of Rs.10 lacs. There is no purpose now to keep the proceedings pending in appeal before the lower appellate court. Here, we would like to point out that quashing of a case is different from compounding.
This Court in JIK Industries Ltd.3 (Supra) distinguished the quashing of case from compounding in the following words:
"Quashing of a case is different from compounding. In quashing the court applies it but in compounding it is primarily based on consent of the injured party. Therefore, the two cannot be equated."
In our opinion, if we allow the continuance of criminal Ashish Digitally signed by Ashish Rastogi appeals pending before Additional Sessions Judge Rastogi Date:
2024.11.13 16:25:01 +0530 CR No.105/2024 DYS Impex Pvt. Ltd. Vs State & Anr. 6 of 7 against the appellant's conviction then it would defeat all the efforts of this Court in the last year where this Court had monitored this matter and ensured that the complainant gets her money back.
7. Thus, it is to be kept in mind that the application for compounding can be moved at any stage and same has been moved at a relatively early stage of the Trial and notice has not been issued yet. Therefore, Trial Court is directed to consider the application for compounding filed by the revisionist and decide the same expeditiously keeping the above mentioned legal position in mind.
8. With the above observation, the present revision petition stands partly allowed to the extent mentioned above.
9. TCR be sent back along with copy of this order.
10.A copy of this order be given dasti to Ld. Counsel for both the parties.
11.Revision file be consigned to the Record Room.
Announced in the open Court on 13.11.2024 Digitally signed by Ashish (Ashish Rastogi) Ashish Rastogi Rastogi Date:
2024.11.13 Addl. Sessions Judge-05 (Electricity) 16:25:08 +0530 East/Karkardooma Courts/Delhi CR No.105/2024 DYS Impex Pvt. Ltd. Vs State & Anr. 7 of 7