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Punjab-Haryana High Court

M/S Keep Intouch Clothing Pvt. Ltd. And ... vs M/S Kudu Knit Process Pvt. Ltd on 16 May, 2012

       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

                                     CRM M-6112 of 2011
                                     Date of Decision:16.5.2012

M/s Keep Intouch Clothing Pvt. Ltd. and another         .... Petitioners

                              Versus

M/s Kudu Knit Process Pvt. Ltd.                         .... Respondents


CORAM: Hon'ble Ms. Justice Nirmaljit Kaur

Present:    Mr. Sanjeev Manrai, Advocate for the petitioners.
            Mr. V. Ramsarup, Advocate for the respondent.
                      ****
              1.Whether Reporters of Local Newspapers may be
              allowed to see the judgment?
              2.To be referred to the Reporters or not?
              3.Whether the judgment should be reported in the
              Digest?

NIRMALJIT KAUR, J.(Oral)

The present petition has been filed under Section 482 Cr.P.C. for quashing of the complaint No.127/2 dated 28.3.2008 under Section 138 of the Negotiable Instruments Act pending in the Court of learned Judicial Magistrate Ist Class, Ludhiana, vide which the petitioners were summoned to face trial vide order dated 20.3.2008 by the learned Judicial Magistrate Ist Class, Ludhiana and subsequent proceedings arising therefrom.

Vide order dated 8.5.2010, following order was passed:

"Learned counsel for the petitioners submits that they have deposited the entire amount towards the dishonoured cheque and they are also ready to pay the interest at the rate of 9% towards the dishonoured cheque from the date when it was dishonoured till the actual date.

Learned counsel for the respondent prays for time to seek instructions in this regard."

Today learned counsel for the respondent submits that he has instructions to state that respondent has no objection to the quashing of the complaint in case the petitioner pays ` 50,000/- towards dishonoured cheque as well as interest at the rate of 9% towards the dishnoured cheque from the date when it was dishonoured till the date of payment.

Learned counsel for the petitioners, accordingly, has brought a demand draft bearing No.231425 issued by ICICI Bank amounting to ` 69,615/- and the same is handed over to the counsel for the respondent and the same is accepted by him.

As such, the respondent has received the entire payment towards the dishonoured cheque alongwith interest at the rate of 9%.

In view of the above, this Court has no doubt that the matter has been finally settled between the parties.

Hon'ble the Supreme Court in the case of Cochin Hotels Co.(P) Ltd. and others v. Kairali Granites and others reported as 2006(2) RCR (Criminal) 333, in some what similar circumstances, allowed the compounding of offence and set aside the order of conviction and sentence. Similar order was also passed by the Apex Court in the case of K Subramanian v. R Rajathi Rep. By POAP Kaliappan reported as 2010 (1) RCR (Criminal) 184, in para 5 of the judgment, reads as under:-

"The trial Court by judgment dated September 21, 2004 convicted the petitioner under Section 138 and CRM M-6112 of 2011 -3- sentenced him to Simple Imprisonment for one year and fine of Rs.5000/- in default Simple Imprisonment for 3 months. Feeling aggrieved, the petitioner preferred Criminal Appeal No.107 of 2004 before Sessions Court which was dismissed on 24.12.2004. Thereupon, the petitioner filed Criminal Revision Application No.179 of 2005 before the Madurai bench of Madras High Court which was dismissed on January 30, 2008. Therefore, the petitioner filed SLP (Crl) No.6974 of 2008 @ CRL. M.P. No.14586 of 2008 which was also dismissed on September 11,2008. 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. Rajathi on 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 cheques and he is not willing to prosecute the petitioner. 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."

Section 147 of the Negotiable Instruments Act reproduced as under:

"147. Offence to be compoundable-Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974), very offence punishable under this Act shall be compoundable."

Reliance has been placed on the judgment passed by this Court in the case of Ritesh Gupta v. State of Punjab and another 2009(3) R.C.R (Criminal) 61 whereby this Court has relied upon the judgment of Apex Court in the case of O.P Dholakia v. State of Haryana and another, (2000) 1 SCC 762 wherein the Apex Court was pleased to allow the accused and the complainant to compound an offence under Section 138 of the Act despite conviction and sentence having been held by three Forums. In view of the compromise, the conviction and sentence under Section 138 of the Act was annulled.

Hon'ble the Supreme Court in the case of Shakuntala Sawhney vs. Mrs. Kaushalya Sawhney and others reported as (1980) 1 SCC 63, held that:-

"29. No embargo, be in the shape of Section 320(9) of the Cr.P.C. or any other such curtailment, can whittle down the power under Section 482 of the Cr.P.C."

Taking into account that the statement made by the learned counsel for the respondent and the fact that the respondent has received the entire amount towards the dishonoured cheque CRM M-6112 of 2011 -5- alongwith interest, it is a fit case where there is no impediment in the way of the Court to exercise its inherent powers under Section 482 Cr.P.C. for quashing of complaint in the interest of justice.

Accordingly, the present petition is allowed and complaint No.127/2 dated 28.3.2008 under Section 138 of the Negotiable Instruments Act pending in the Court of learned Judicial Magistrate Ist Class, Ludhiana, vide which the petitioners were summoned to face trial vide order dated 20.3.2008 by the learned Judicial Magistrate Ist Class, Ludhiana and all subsequent proceedings arising therefrom are hereby quashed.

16.5.2012                                      ( NIRMALJIT KAUR )
rajeev                                              JUDGE