Himachal Pradesh High Court
Baldev Singh vs . Hira Singh on 18 September, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
Baldev Singh vs. Hira Singh Cr.M.P. No. 3464 of 2023 in Criminal Appeal No. 200 of 2010 .
18.09.2023 Present: Mr. Bimal Gupta, Sr. Advocate, with Ms. Kusum Chaudhary, Advocate, for the non-applicant/ appellant.
Mr. L.S. Mehta, Advocate, for the applicant/ convict/respondent.
Cr.M.P. No. 3464 of 2023 of
1. The applicant/respondent, vide judgment dated 6 th September, 2023, passed by this Court, in Criminal Appeal No. rt 200 of 2010, was convicted by this Court under Section 138 of the Negotiable Instruments Act, and the case was fixed for today for hearing on quantum of sentence.
2. Today, a joint application (Cr.M.P. No. 3464 of 2023) has been moved by the parties under Section 482 Cr.P.C. read with Section 147 of the Negotiable Instruments Act, with a prayer to compound the matter and to recall/set-aside the aforesaid judgment of conviction and to acquit the convict/respondent. The application is supported with the affidavits of the applicant and non-applicant and also with the copy of Compromise Deed, Annexure R-1.
3. The complainant-Shri Baldev Singh is also present in the Court today and his statement has been recorded and placed on record. He has stated that on the basis of his complaint under Section 138 of the Negotiable Instruments Act, the respondent-accused was convicted by this Court, vide judgment dated 06.09.2023. He has further stated that now, he does not want to pursue his complaint, as he has settled the matter with the respondent-accused and received ::: Downloaded on - 18/09/2023 20:37:33 :::CIS ...2...
twice the cheque amount in the sum of Rs.70,000/- from him.
He has also stated that in view of the amicable settlement, he .
has no objection in case the accused-respondent is acquitted of the offence under Section 138 of the Negotiable Instruments Act.
4. In view of the the fact that the complainant has of received twice the cheque amount in the sum of Rs.70,000/-
from the applicant/convict and the parties have amicably rt settled the matter coupled with the fact that the complainant has no objection in case the accused-respondent is acquitted of the offence under Section 138 of the Negotiable Instruments Act, therefore, this Court sees no impediment in accepting the prayer made on behalf of the parties for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon'ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H., (2010) 5 SCC 663, wherein the Hon'ble Apex Court has held as under:-
"10. At present, we are of course concerned with Section 147 of the Act, which reads as follows:-
"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."
At this point, it would be apt to clarify that in view of the non-obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure (hereinafter "CrPC") will not be applicable in the strict sense since the latter is meant for the specified offences under the Indian Penal Code, 1860.
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11. So far as the CrPC is concerned, Section 320 deals with offences which are compoundable, either by the parties without the .
leave of the court or by the parties but only with the leave of the Court. Sub-section (1) of Section 320 enumerates the offences which 9 are compoundable without the leave of the Court, while subsection (2) of the said section specifies the offences which are compoundable with the leave of the Court.
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12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the rt general rule incorporated in sub-section (9) of Section 320 of the CrPC which states that 'No offence shall be compounded except as provided by this Section'. A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Indian Penal Code also cannot be compounded.
However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause."
5. In K. Subramanian Vs. R. Rajathi; (2010) 15 Supreme Court Cases 352, it has been held by the Hon'ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction. The relevant portion of the judgment is reproduced as under:-
"6. Thereafter a compromise was entered into and the petitioner claims that he has paid Rs. 4,52,289 to the respondent. In support of this claim, the petitioner has produced an affidavit sworn by him on 1.12.2008. The petitioner has also produced an affidavit sworn by P. Kaliappan, Power of attorney holder of R. Rajathi on 1.12.2008 mentioning that he has received a sum of Rs.::: Downloaded on - 18/09/2023 20:37:33 :::CIS
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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.
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7. The learned counsel for the petitioner states at the Bar that the petitioner was arrested on 30.7.2008 and has undergone the sentence imposed on him by the trial Court and confirmed by the Sessions Court, the High Court as well as by this Court. The two affidavits sought to be produced by the petitioner as additional documents would of indicate that indeed a compromise has taken place between the petitioner and the respondent and the respondent has accepted the compromise offered by the petitioner pursuant to which he has received a sum of rt 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.
8. Having regard to the salutary provisions of Section 147 of the Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, this Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code."
6. Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has paid twice the cheque amount to the complainant, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon'ble Apex Court.
7. Therefore, in view of the detailed discussion made hereinabove as well as law laid down by the Hon'ble Apex Court, the parties are permitted to get the matter compounded in light of the compromise arrived inter se them.
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8. Accordingly, the present matter is ordered to be compounded and the judgment, dated 6 th September, .
2023, passed by this Court, in Criminal Appeal No. 200 of 2010, is quashed and set-aside and the petitioner-
accused is acquitted of the charge framed against him under Section 138 of the Act.
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9. Undisputedly, the cheque amount is of Rs.35,000/-, however, the learned counsel for the rt petitioner submitted that the petitioner is a poor person and the imposition of the compounding fee may be reduced.
10. In case K. Subramanian vs. R. Rajathi (supra), the Hon'ble Apex Court had issued the guidelines with respect to the imposition of compounding fee, which read as under:-
"THE GUIDELINES
(i) In the circumstances, it is proposed as follows:
(a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the Court without imposing any costs on the accused.
(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Curt deems fit.
(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be ::: Downloaded on - 18/09/2023 20:37:33 :::CIS ...6...
allowed on the condition that the accused pays 15% of the cheque amount by way of costs.
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(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.
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25. The graded scheme for imposing costs is a means to encourage compounding at an early stage of litigation. In the status quo, valuable time of the court is spent on the trial of these of cases and the parties are not liable to pay any court fee since the proceedings are governed by the Code of Criminal Procedure, even though the impact of the offence is largely confined to the private parties. Even though the imposition of rt costs by the competent court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity. The competent court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end."
11. Therefore, taking into consideration the law laid down by the Hon'ble Apex Court (supra) and the financial condition of the petitioner, as he is a poor person, since the competent Courts can reduce the compounding fee with regard to the specific facts and circumstances of the case, the petitioner is directed to deposit token compounding fee of Rs.3000/- (rupees five thousand) only with H.P. State Legal Services Authority, Shimla, H.P., within four weeks from today.
12. The application stands disposed of in the aforesaid terms.
( Sushil Kukreja ) Judge 18th September, 2023 (virender) ::: Downloaded on - 18/09/2023 20:37:33 :::CIS