Punjab-Haryana High Court
R.S.Sandhu vs Lt.Col.Surinder Singh Randhawa on 21 August, 2012
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Misc. No.1328 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.1328 of 2011 (O&M)
Date of Decision: 21st August,2012
R.S.Sandhu
...Petitioner
Versus
Lt.Col.Surinder Singh Randhawa
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.G.S.Bhatia, Advocate,
for the petitioner.
Mr.Amit Sharma, Advocate,
for the respondent.
***
Naresh Kumar Sanghi, J.
Challenge in this petition filed under Section 482 Cr.P.C is to the order dated 25.11.2010 (Annexure P-8) passed by learned Judicial Magistrate Ist Class, Chandigarh, whereby the application (Annexure P-6) filed by the petitioner-accused for allowing him to make the payment of the dishonoured cheques and compounding of the offence was dismissed.
The facts in brief of the case are that the petitioner issued three cheques bearing Nos.608873, 608868, and 816779, drawn on Punjab and Sind Bank, SCF No.23-25, Phase V, Mohali, and Indus Ind. Bank Ltd., Phase III B-2, SAS Nagar, Mohali, amounting to Rs.11,608/- dated 05.10.2009, Rs.11,608/- dated 05.08.2009, and Rs.10,748/-, dated 05.07.2009, respectively, in the discharge of his legally enforceable liability, in favour of the complainant/respondent. Criminal Misc. No.1328 of 2011 (O&M) 2 When the cheques were presented for encashment in the bank, the same were dishonoured and memo dated 14.11.2009 was received in that regard. After receipt of the dishonour memo dated 14.11.2009, legal notice dated 16.11.2009, was issued to the accused/petitioner through Registered Post as well as through UPC. The notice sent through Registered Post was received back with the remarks "unclaimed" but the other notice sent through UPC was duly received by the accused on 18.11.2009. Despite issuance of legal notice, the amount of the dishonoured cheques was not paid. Ultimately, after expiry of the requisite period, criminal complaint under Section 138 of the Negotiable Instrument Act (for short "N.I.Act") was filed.
The accused/petitioner moved an application dated 03.03.2010 for rejection of the complaint, on the ground that in the first instance the complainant told him that he would not present the cheques issued in his favour but without his knowledge, he presented the same for encashment. It was stated that the petitioner never received any legal notice from the complainant/respondent. It was further stated that as soon as the petitioner received the summons in the complaint, within 15 days of the receipt thereof, he offered the entire amount of the dishonoured cheques, to the complainant but he did not accept the same and as such, the complaint was liable to be rejected.
After hearing the learned counsel for the parties and going through the record, the trial court dismissed the application Criminal Misc. No.1328 of 2011 (O&M) 3 filed by the petitioner vide order dated 12.04.2010.
The order dated 12.04.2010 passed by learned Judicial Magistrate Ist Class, Chandigarh, was challenged by way of Criminal Misc. No.M-11091 of 2010 before this Court and the same was dismissed vide order dated 20.04.2010 (Annexure P-5).
The petitioner/accused once again moved an application (Annexure P6) for compounding of the complaint in view of the guidelines framed by Hon'ble the Supreme Court in Dammodar S.Prabhu vs. Sayed Baba Lal, 2010(2) RCR(Criminal) 851. The said application was dismissed by learned Judicial Magistrate Ist Class, Chandigarh, vide order dated 25.11.2010 (Annexure P-8) and, therefore, the petitioner has filed the present petition for quashing of the order dated 25.11.2010 (Annexure P-8).
Learned counsel for the petitioner has vehemently argued that Hon'ble the Supreme Court has framed guidelines for compounding of the offence punishable under Section 138 of the NIA in Dammodar S.Prabhu's case (supra), if the accused is ready to make the payment in accordance with the conditions laid down in the said judgment. Learned counsel further contends that after receiving the notice from the Court, the petitioner/accused immediately moved an application before learned trial court for allowing him to deposit a bank draft equal to the amount mentioned in the disputed cheques. Therefore, the learned trial court should have allowed the application (Annexure P-6) for compounding the offence in view of Damodar S. Prabhu's case (supra).
Criminal Misc. No.1328 of 2011 (O&M) 4
On the other hand, learned counsel for the respondent/complainant submitted that the respondent/complainant was not ready to compound the offence, therefore, learned trial court had rightly rejected the application (Annexure P-6) vide order (Annexure P-8). He further contends that the respondent/complainant is still not agreeable for compounding the offence, therefore, the present petition for quashing of the complaint on the basis of compromise deserves to be dismissed. In support of his contention, he has relied upon t he latest pronouncement of Hon'ble the Supreme Court in the case of JIK Industries Limited & Ors. vs. Amarlal V.Jumani and Another, 2012(1) RCR(Criminal) 822, wherein it was held as under:-
"73. In our country also when the Criminal Procedure Code, 1861 was enacted it was silent about the compounding of offence. Subsequently, when the next Code of 1872 was introduced it mentioned about compounding in Section 188 by providing the mode of compounding. However, it did not contain any provision declaring what offences were compoundable. The decision as to what offences were compoundable was governed by reference to the exception to Section 214 of the Indian Penal Code. The subsequent Code of 1898 provided Section 345 indicating the offences which were compoundable but the said Section was only made applicable to compounding of offences defined and permissible under Indian Penal Code. The present Code, which repealed the 1898 Code, contains Section 320 containing comprehensive provisions for compounding. A perusal of Section 320 makes it clear that the provisions Criminal Misc. No.1328 of 2011 (O&M) 5 contained in Section 320 and the various sub-sections is a Code by itself, relating to compounding of offence. It provides for the various parameters and procedures and guidelines in the matter of compounding. If this Court upholds the contention of the appellant that as a result of incorporation of Section 147 in the N.I.Act, the entire gamut of procedure of Section 320 of the Code are made inapplicable to compounding of an offence under the N.I. Act, in that case the compounding of offencce under N.I.Act will be left totally unguided or uncontrolled. Such an interpretation apart from being an absurd or unreasonable one will also be contrary to the provisions of Section 4(2) of the Code, which has been discussed above. There is no other statutory procedure for compounding of offence under N.I. Act. Therefore, Section 147 of the N.I.Act must be reasonably construed to mean that as a result of the said Section the offences under N.I.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 N.I.Act."
I have heard learned counsel for the parties and with their able assistance, meticulously examined the material on record.
Perusal of the above latest pronouncement by Hon'ble the Supreme Court in JIK Industries Limited's case (supra), it is clear that Section 147 of the N.I.Act must be reasonably construed to mean that as a result of said Section the offences under the Negotiable Instrument Act are made compoundable, but the main principle of such compounding, namely, the consent of the person Criminal Misc. No.1328 of 2011 (O&M) 6 aggrieved or the person injured or the complainant cannot be wished away nor can be same be substituted by virtue of Section 147 of the N.I.Act.
For the reasons aforesaid, this Court is unable to accept the contentions of learned counsel for the petitioner to quash the complaint in the present case.
Resultantly, finding no merit in the present petition, the same is hereby dismissed.
21st August, 2012 (Naresh Kumar Sanghi) seema Judge