Madras High Court
P.Thomas vs P.Magudapathy on 25 July, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.07.2014 CORAM: THE HON'BLE Ms.JUSTICE K.B.K.VASUKI Crl.O.P.No.17518 of 2014 and M.P.No.1 of 2014 P.Thomas .. Petitioner Vs. 1.P.Magudapathy 2.The State rep. by Inspector of Police, P-13, Pothanur Police Station, Coimbatore District. .. Respondents Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, praying to compound the offence under Section 147 of the Negotiable Instruments Act, which is the subject matter of STC.No.2027/2005 on the file of the Judicial Magistrate No.VII, Coimbatore, between the petitioner and the first respondent based upon the joint compromise deed dated 18.6.2014 entered into between the petitioner and the first respondent (after disposal of Crl.RC.No.1793/2007 by this Court by an order dated 19.12.2013). For Petitioner : Mr.B.Ramamoorthy For Respondents : Mr.R.Gokulakrishnan (R1) Mr.C.Emalias, APP (R2) O R D E R
This petition is filed under Section 147 of the Negotiable Instruments Act to compound the offence in STC.No.2027/2005 on the file of the Judicial Magistrate No.VII, Coimbatore, on the basis of the joint compromise deed dated 18.6.2014 entered into between the petitioner and the first respondent.
2.The petitioner herein is the sole accused in STC.No.2027/2005 arising out of the private complaint filed by the first respondent herein for the offence under section 138 of the Negotiable Instruments Act and STC ended in order of conviction against the accused for the offence under Section 138 of the Act and the same was also confirmed in Crl.A.No.304/2007 as well as in Crl.RC.No.1793 of 2007. Aggrieved against the order dated 19.12.2013 made in Crl.RC.No.1793/2007 in confirming the order of conviction passed by the lower court and in dismissing the revision filed by the petitioner for non-appearance on the side of the petitioner, the petitioner filed Crl.MP.SR Nos.9626 and 10665/2014 in Crl.RC.1793/2007 to set aside the order of dismissal dated 19.12.2013 passed in Crl.RC.1793/2007 and to restore the said criminal revision and the same were rejected at SR stage, as not maintainable.
3.The fact remains undisputed is that the order of conviction passed against the petitioner stands confirmed. However, the petitioner has come forward with this petition Crl.OP.No.17518/2014 to permit him to compound the offence by the second respondent based on the joint compromise deed dated 18.6.2014 entered into between the petitioner and the first respondent, after disposal of Crl.RC.1793 of 2007 by this court and also to direct the second respondent not to execute the warrant issued by the Judicial Magistrate No.7, Coimbatore in connection with STC.No.2027/2005. The learned counsel for the petitioner also cited the following authorities before this court that such petition is maintainable before this Court at this stage: (i)(2010) 3 MLJ (Crl) 390 (SC) (Damodar S.Prabhu v. Sayed Babalal H) and (ii)(2014) 2 MLJ (Crl) 654 (D.Simpson v. S.T.Perumal).
4.In the first case, the Hon'ble three judges larger bench of the Supreme Court issued guidelines as to whether the court holding a trial or hearing an appeal, can impose costs on the accused, even while compounding an offence. In the course of discussion, the Hon'ble Apex court in para 11 referred to the earlier judgment reported in AIR 2010 SC 276 (K.M.Ibrahim v. K.P.Mohammed and another) for the legal proposition that the compounding of the offence at later stages of litigation in cheque bouncing cases has also been held to be permissible. It is observed in paras 11 and 12 of the earlier decision as follows:
11.As far as the non-obstante clause included in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of offences....
12.It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution. The observation made in para 12 makes it abundantly clear that section 147 of the Act does not bar the parties from compounding the offence under section 138 even after proceedings has been concluded before the Appellate Forum. Thus, the observation of the Hon'ble Apex court answered the first query raised herein about the stage at which compounding the offence can be made, on the basis of the settlement arrived at between the parties. Further, the Hon'ble Apex Court in (2010) 3 MLJ (Crl) 390 (SC) (Damodar S.Prabhu v. Sayed Babalal H) issued guidelines that if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.
5.In the second case reported in (2014) 2 MLJ (Crl) 654 (D.Simpson v. S.T.Perumal), the learned brother judge of this Court, having found that the parties settled the dispute and the complainant compounded the offence and it is a subsequent change in circumstance, is pleased to hold that extraordinary inherent jurisdiction under section 482 Cr.P.C can be invoked in view of the changed circumstances and allowed the petition on the basis of the compromise entered into between the parties. The learned brother judge in his decision, referred to various decisions of the Hon'ble Supreme Court, one among which is the decision reported in AIR 2003 SC 1386 (B.S.Joshi v. state of Haryana) wherein the Hon'ble Apex court is of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing and section 320 of the Code does not limit or affect the powers under section 482 Cr.P.C. These observations were made, while considering the question of quashing an FIR and the learned brother Judge also considered the question of quashing a sentence, which has become final, when the offence is legally compounded.
6.This Court agrees with the view expressed by the learned brother judge regarding the power exercised under section 482 Cr.P.C that Section 320(1) only speaks of composition without any fetters or limitations about time and stage, section 320(9) cannot be held to fetter the powers in such situations and the powers under section 482 Cr.P.C as also Article 226 and 227 of the Constitution are available with the Court to do justice in a given case when the conscience of the court is satisfied that powers must be invoked. The learned brother judge also after elaborately discussing the limited power of this court under section 362 Cr.P.C, by following the earlier judgment of the Hon'ble Apex Court reported in 1990 Crl.LJ 1599 (Mostt. Simrikhia v. Smt.Dolley Mukherjee), is pleased to hold that notwithstanding the bar under section 362, the change in circumstances is sufficient to justify the invocation of the powers afresh under section 482 Cr.P.C. The learned brother judge, having observed so, recorded the compromise entered into between the parties and allowed the criminal original petition with costs of Rs.25,000/- to the Tamil Nadu State Legal Services Authority within the period specified therein.
7.In the instant case, though the revision was dismissed, by confirming the order of conviction and though the order of conviction became final and binding, the parties, having arrived at compromise subsequently, the factum of compromise can be considered for allowing the parties to compound the offence, however subject to payment of costs.
8.In the result, the offence charged against the petitioner is compounded and the order of conviction and sentence is set aside, in view of the compromise arrived at between the parties, however on payment of costs of Rs.20,000/- to the Tamil Nadu Legal Services Authority by the accused within three weeks from the date of receipt of the copy of this order.
9.The Criminal Original Petition is accordingly ordered. Consequently, connected miscellaneous petition is closed.
rk
Index:Yes/No
Internet:Yes/No 25.07.2014.
To
1.The Judicial Magistrate No.VII, Coimbatore.
2.The Inspector of Police,
P-13, Pothanur Police Station,
Coimbatore District.
3.The Public Prosecutor, High Court, Madras.
K.B.K.VASUKI, J.
rk
Crl.O.P.No.17518 of 2014
25.7.2014
....
WP.8743
In the case reported in 2008 .... the learned brother jduge of this court has inparas 13 and 14 cited the earlier judgement of this court while dealign with the issurelating to serviceof notice individually. One of the case refrre to abvoe therein, is the decisionreproted in 2014 (3) CTC 64..... in para 7 fo the order, tis court has under similar circumstances, held that the rejectionof the consodliar form is bad. It is held in para 7....
Here agai, the order of the District collector is non-speaking order. Neither the order nor file reflect the reasons substantiating the decisin take by the District collector. In that event,...
....
24.7.2014 The learned cousnelf or the petitioners and the learned Additional Prosecution pu city Crime Branch are present inspite of due service of notice to the second respondent, second respondent is not represented either in person or through any pleader.
The petitioners herein are arrayed as A1 and A2 in Cr.No.54/2013 on the file of the first respondent police.
The present quash petition is filed by the petitioners on three grounds (i)the dispute between the parties are purely ciivl in nature (ii)the parties arrived at the settlement in respect of entire dispute including FIR in Cr.nO.54/2013 and (iii) ....
16144 The petitioners herein are arryed as A1 and A2 in CC.61 on the file of the District judicat magi, Tidn the present petition is field to quashe dhte proceedings against the few facts, which led to filing of the complaint is are as follows the petitioner is the prsident of and 2nd petition is his son and workign as conductor in ... villupuram divisin. During 2013, one of the project which was entrusted to the Village Panchayat under Mahatma gandhi rurle gaurate for .. for lake in pattam village. About 150 persons form pattam vilalge were engaged for the work in question. While the work was going ontime at 9.30 am on .... some of the workers are... pit in the ack area, unfortunately four women namely died in the same. In this regard, one Gopi S/o.Murugesan lodged the complaint with the respondent police alelging that the first eptitione rbeing the Panchayat Preisdent has nto aken safety and they were engligent work while carying out sledging work in pattanam village. On the basis of the same, Fir was regitered... for the offences under section altered into .... 337 IPC against the petitioner and one panchayat clerk Baskaran. After investigation, charge sheet was filed against the petitioner for the offences under section 377, 304 Part II and 337 IPC.
The allegations raised against the petitioner are that mishap happended, the the persons died and injured along with 20 other ladies were engaged in sand quarrying without carrying on the work allotted to them as directed by the petitioner/accused for the personal gain. Though the 161 statement of the complainant and other witnesses do support the allegations raised so, the same is falsified by the order of the Government in G.O.ms.No. .... Rurla dn Panchayt ... department dated 9.4.2013 in and under which victim family were awarded compensation fo Rs.1 lakh from the chief Minister relief fund. The order says that the sand gave away when the victim concerned were engaged in .....manal allu veli. It is categoriay stated in the G.O. Sand slide is squarely an accidental one. As rightly argued by the learned counsel for the petitioner, the ebntire allegations as staed int eh charge sheet against the petitioner stands falsified by the award of relief to the victim family by the govt. on the gorudn that the same is an accidental one. There is no other supporting material to substantiate the allegations raised againt th eptitioner, as such, it is a ftit case wherein, the criminal proceesdign initaited petitioners are liable to be quashed and stand quashed.
....
Crl.O.P.No.19197/2014Heard both.
Though the learned additional public prosecutor wouldsubmit that the husband of the complainant has given the complaint in respect of the same cause of action and approched this court by way of Cr.O.P.No..15526 of 2014 directing the respndent to register the complaint dated 5.6.2014 and dealt with the case and the same is by order dated.... dismissed by this court. Whereas, thepresent complaitn is fild for different cause of action against the alelged occurrence on 1.4.2014.
Considering the anture of the alelgatiosn raised in the complaint, ..
ususal order.
...