Delhi High Court - Orders
Kanchan vs Shri Vinay Kumar on 11 December, 2024
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
$~172
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 1353/2024
KANCHAN .....Petitioner
Through: Mr. Jatin Rajput and Mr. Sandeep
Kumar, Advocates
versus
SHRI VINAY KUMAR .....Respondent
Through: Appearance not given.
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
% 11.12.2024 CRL.M.A. 37244/2024 (Exemption) Exemption allowed subject to just exceptions.
The application stands disposed of.
CRL.M.A. 37245/2024 (compounding the offence on the basis of written settlement)
1. The instant application under Section 147 of the Negotiable Instruments Act, 1881 (hereinafter as the "NI Act") read with Section 359 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter as the "BNSS") [earlier under Section 320 of the Code of Criminal Procedure, 1973 (hereinafter as the "Code")] has been filed on behalf of the applicant/petitioner seeking the following reliefs:
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to kindly allow the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/12/2024 at 23:21:52 compounding of offence of Section 138 of the NI Act on the basis of compromise between the parties."
2. The brief facts of the case are that a complaint dated 16 th October, 2019 was filed by the respondent/complainant under Section 138 read with Section 141/142 of the NI Act against the applicant for the dishonour of cheque bearing no. 181764 dated 13th August, 2019 issued by the applicant for an amount of Rs. 1,00,000/-.
3. Accordingly, the applicant was convicted for the offence punishable under Section 138 of the NI Act vide judgment dated 28 th June, 2023 passed by the learned Metropolitan Magistrate-01, NI Act, West, Delhi (hereinafter as the "Magistrate"). Thereafter, vide order dated 5th July, 2023, the learned Magistrate ordered a sentence of 3 months of simple imprisonment and a fine of Rs. 1,32,000/- along with an interest @ 8% from the date of institution of the said case payable to the respondent as compensation.
4. Aggrieved by the said order of conviction and sentence, the applicant filed a criminal appeal bearing no. 259/2023 before the learned Additional Sessions Judge-05, West District, Tis Hazari Courts, Delhi (hereinafter as the "ASJ"). However, the said appeal was dismissed vide order dated 3 rd September, 2024 (hereinafter as the "impugned order"), thereby, upholding the conviction of the applicant.
5. Being aggrieved by the same, the applicant preferred the captioned revision petition before this Court. However, while the captioned revision petition was pending before this Court, the instant application was filed by the petitioner for compounding of the offence punishable under Section 138 of the NI Act on the basis of the settlement arrived at between the parties herein.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/12/2024 at 23:21:52
6. Learned counsel for the applicant submitted that a settlement has been arrived at between the complainant and the applicant through his parokar i.e., Ms. Salminda, who is also the applicant's daughter, vide a written settlement agreement dated 28th October, 2024 (hereinafter as the "Settlement Agreement"), which is annexed as Annexure D to the instant application.
7. It is further submitted that as per the terms and conditions of the settlement agreement, it was agreed that a total amount of Rs. 3,50,000/- will be paid as a full and final payment to the respondent. Hence, it is prayed that the instant application be allowed.
8. Learned counsel for the respondent submitted that the matter has been settled between the parties and therefore, no useful purpose would be served by keeping the proceedings in the instant matter pending. Hence, it is prayed that the instant application be allowed, thereby, compounding the offence on the basis of settlement arrived at between the parties.
9. Heard learned counsel for the parties and perused the record.
10. The parties herein have sought for the relief of compounding of the offence punishable under Section 138 of the NI Act based on the settlement agreement entered into by the parties. The said relief is being sought under Section 147 of the NI Act read with Section 359 of BNSS, which deals with the compounding of the offences. The said provision is reproduced as under:
"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."
11. The said provision merely states that the offences punishable under This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/12/2024 at 23:21:53 the NI Act are compoundable, as opposed to its counterpart in the Code under Section 320 of the Code, wherein, the list of offences are specified for compounding of the offences.
12. However, in either of the provisions, the main principle for compounding of the offence is to procure the "consent" of the aggrieved person. The said principle has been observed in a catena of cases, including the case of Raj Reddy Kallem v. State of Haryana, (2024) 8 SCC 588, wherein, the Hon'ble Supreme Court observed that the consent of the parties is essential for compounding an offence. The relevant paragraphs of the same are as follows:
"19. Further this Court observed in para 82 of the said judgment that : (JIK Industries case [JIK Industries Ltd. v. Amarlal V. Jumani, (2012) 3 SCC 255 : (2012) 2 SCC (Civ) 82 : (2012) 2 SCC (Cri) 125] , SCC p. 276) "82. ... 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."
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23. Here, we would like to point out that quashing of a case is different from compounding. This Court in JIK Industries [JIK Industries Ltd. v. Amarlal V. Jumani, (2012) 3 SCC 255 :
(2012) 2 SCC (Civ) 82 : (2012) 2 SCC (Cri) 125] distinguished the quashing of case from compounding in the following words : (SCC p. 269, para 43) "43. 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."
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/12/2024 at 23:21:53
13. In the instant case, the parties herein i.e., the complainant and the applicant through his parokar i.e., Ms. Salminda, have amicably settled the matter and the complainant, who is the aggrieved, has stated that she has no objection in compounding of such offence, thereby, giving her consent for the same. The terms and conditions of the said settlement are as follows:
"1. That it has been agreed between the parties that the second party shall pay the settled amount of Rs.3,50,000/- in respect of both the above said complaint cases to the first party.
2. That the first party has also agreed to settle both the matters for the said sum of Rs.3,50,000/- out of which the first party has already received Rs. 1,50,000/- in cash on 2.10.2024 and remaining amount of Rs.2,00,000/- was agreed to be paid by the second party through his Parokar to the first party by way of six post dated cheques the details of the said cheques are as follows:-
All cheques drawn on H.D.FC. Bank Ltd., Plot No.K, Sector-2, Manesar, Haryana, having IFSC Code No.HDFC0000589 in the name of Salminda, who is daughter of second party.
3. That the compromise has arrived at between the parties without any pressure, coercion or force from any corner but out of their own sweet will and consent.
4. That it has been agreed between the parties that after clearing the entire settled amount, the first party shall withdraw the complaint case vide C.C.No.7663/2019 titled as, "Vinay Kumar Vs. Kanchan" which is pending before the Hon'ble Court of Ms.Surbhi Sethi, J.M.F.C. (N.I. Act), Tis Hazari Courts, Delhi.
5. That both parties shall reach the Hon'ble High Court to get the conviction set aside under the relevant law and shall This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/12/2024 at 23:21:53 file joint application for this purpose. The first party/complainant shall have no objection in setting aside the conviction and he shall cooperate with the same. It is admitted by first party that no undue force or coercion has been used to taken his consent."
14. Therefore, taking in view of the provisions of Section 147 of the NI Act, law laid down by the Hon'ble Supreme Court as well as the terms and conditions of the settlement agreement, the offence under Section 138 of the NI Act stands compounded. Accordingly, the applicant is, hereby, acquitted of the charge.
15. A communication be sent to the Jail Superintendent along with copy of order with direction to release the petitioner forthwith if not required in any other case.
16. Accordingly, the instant application is hereby allowed.
CRL. REV.P. 1353/2024In view of the order passed on the even date in CRL.MA. 37245/2024, there is nothing left for any further adjudication in the instant revision petition. Accordingly, the instant revision petition stands disposed of. Pending applications, if any, stands dismissed.
CHANDRA DHARI SINGH, J DECEMBER 11, 2024 gs/mk Click here to check corrigendum, if any This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/12/2024 at 23:21:53