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Punjab-Haryana High Court

M/S. Makson Retailers Pvt. Ltd. And ... vs Dr. Gurpreet Kaur on 31 October, 2012

Author: Naresh Kumar Sanghi

Bench: Naresh Kumar Sanghi

Criminal Misc. No. M-17291 of 2011             1


         IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

                Criminal Misc. No.M-17291 of 2011
                Date of Decision: October 31, 2012


M/S. Makson Retailers Pvt. Ltd. and another.


                                        Petitioners

Versus

Dr. Gurpreet Kaur

                                       Respondent


CORAM:   HON'BLE MR. JUSTICE NARESH KUMAR SANGHI



Present: Mr.M.S.Sachdev, Advocate,
         for the petitioners.

         Mr.Shubhjot Singh Chadha, Advocate,
         for the respondent.

                    ***

Naresh Kumar Sanghi, J.

Prayer in this petition is for quashing of Criminal Complaint No.159 dated 04.03.2010, titled as " Dr. Gurpreet Kaur Versus M/S. Makson Retailers Pvt. Ltd. & another", filed under Section 138 of the Negotiable Instruments Act, 1881 ( in short, "N.I.Act"), as well as the order dated 02.03.2010 passed by learned Judicial Magistrate Ist Class, Jalandhar, vide which Criminal Misc. No. M-17291 of 2011 2 the petitioners-accused had been summoned to face trial for the offence punishable under Section 138 of the N.I.Act.

The petition has primarily been filed on the following two issues:-

(1)the cheques in dispute were given to the respondent-complainant as security, therefore, the complaint was not maintainable; and (2) the petitioners-accused had moved an application under Section 147 of the N.I.Act for compounding of the offence.

Learned counsel for the petitioners-accused had not addressed arguments with regard to the first issue but he vehemently argued that the petitioners-accused were ready to pay the disputed cheque amount along with compensation to the respondent-complainant, therefore, the learned trial court should have allowed the compounding of the offence in terms of Section 147 of N.I.Act. He further submitted that the pendency of the complaint and the consequential proceedings emanating therefrom would be sheer abuse of the process of law, therefore, the impugned complaint and the summoning order are liable to the quashed.

On the other hand, learned counsel for the respondent Criminal Misc. No. M-17291 of 2011 3

-complainant submitted that the first contention raised in the petition by the petitioners-accused is not tenable in view of the averments made in the complaint to the effect that the show rooms were leased out to the petitioners-accused in 2008 by M/S. Ansal Plaza Management Company, C/o Ansal Plaza, Uptown Opposite Haveli, G.T.Road, Jalandhar, and the security etc had been given to M/S. Ansal Plaza Management Company, Jalandhar. He further submitted that the respondent- complainant was allotted the show rooms at a later stage and, thereafter, fresh lease deeds were executed, therefore, there was no occasion for the petitioners-accused to issue cheques in favour of the respondent-complainant as security cheques. He further submitted that the second contention of the learned counsel for the petitioners-accused was not sustainable since the respondent-complainant did not want to compromise the matter with the petitioners-accused. He further submitted that in a latest pronouncement in the matter of JIK Industries Limited & Ors. vs. Amarlal V. Jumani and Another, 2012 (1) RCR(Criminal) 822, the Hon'ble Apex Court held that without the consent of the complainant-aggrieved person, the matter cannot be allowed to be compounded.

Heard.

The first contention raised in the petition though not pressed while arguing the matter, but suffice it to say that it is a disputed question of fact and the same can be answered by the learned trial court only on the basis of the material to be placed on record.

So far as the another contention raised by the learned counsel for the petitioner regarding the quashing of the complaint and the summoning order on the basis of compromise is concerned, the same is liable to be rejected because the respondent-complainant is not agreeable to the compounding of the offence. The court cannot allow the compounding of the offence without the consent of the complainant-aggrieved person. In JIK Industries Limited's case (supra), the Hon'ble Apex Court held as under:-

"73. In our country also when the Criminal Procedure, 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 Criminal Misc. No. M-17291 of 2011 5 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 320containing comprehensive provisions for compounding. A perusal of Section 320 makes it clear that the provisions 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 Criminal Misc. No. M-17291 of 2011 6 injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of N.I.Act."

It is also apposite to mention here that the petitioners had earlier filed Criminal Miscellaneous No. M-22982 of 2010 and the same was dismissed as withdrawn on 27.09.2010.

As a sequel to the above findings, there is no force in the present petition and the same is hereby dismissed.

(NARESH KUMAR SANGHI) JUDGE October 31, 2012.

Anoop