Himachal Pradesh High Court
Sh. Hira Nand Shastri vs State Of Rajasthan & Another on 2 March, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 2nd DAY OF MARCH, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 107 of 2022
Between:
SH. HIRA NAND SHASTRI,
S/O LATE SH. DAULAT RAM,
R/O VILLAGE PAHL., P.O. BAKHOL,
TEHSIL KOTKHAI, DISTRICT SHIMLA.
....PETITIONER
(BY MR. NARESH SHARMA,
ADVOCATE)
AND
1. SH. RAM RATTAN THAKUR,
S/O SH. ROOP RAM,
R/O VILLAGE BHAWANA,
PO KIAR KOTI,
TEHSIL AND DISTRICT SHIMLA, H.P.
2. STATE OF HP.
....RESPONDENTS
(BY MR. AJAY SHARMA, ADVOCATE,
FOR R-1)
(BY MR. SUDHIR BHATNAGAR AND
MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATES GENERAL,
WITH MR. NARENDER THAKUR AND
MR. GAURAV SHARMA,DEPUTY
ADVOCATES GENERAL, FOR R-2)
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2
.
Whether approved for reporting?. Yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
Instant petition filed under Section 482 Cr.PC, has been filed with a prayer to compound the offence committed by the petitioner under Section138 of the Act in case No. 58-3 of 2012/11 titled as Ram Rattan v.
Hira Nand decided by the learned JMFC-III, Shimla, vide judgment/order dated 24.6.2013/16.7.2013 and further to quash the sentence of six months awarded to the petitioner.
2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant instituted a complaint under Section 138 of the Act, in the court of learned Judicial Magistrate First Class-III, Shimla, alleging therein that the accused borrowed sum of Rs. 1,90,000/- from him and with a view to discharge his liability, issued cheque for a sum of Rs.
1,90,000/- (Ext.PW1/A), but fact remains that aforesaid cheque on its presentation, was dishonoured. Since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings before the competent Court of law under Section 138 of the Act.
::: Downloaded on - 09/03/2022 20:10:16 :::CIS 33. Learned trial Court on the basis of material adduced on record .
by the respective parties held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, vide judgment/order dated 24.6.2013/16.7.2013, convicted and sentenced him to undergo six months' simple imprisonment and pay compensation to the tune of Rs. 2,25,000/- to the complainant.
4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, accused preferred an appeal in the court of learned Additional Sessions Judge-II Shimla, District Shimla, H.P., which also came to be dismissed vide judgment dated 27.2.2015. Though aforesaid judgment was laid challenge in this court by way of Cr.R. No. 148 of 2015, but same was also dismissed vide judgment dated 1.7.2016. Since after recording of the aforesaid judgment passed by this Court, petitioner has entered into compromise with the respondent-complainant, whereby he has paid the entire sum of compensation awarded by the court below to the respondent-complainant, he has approached this Court in the instant proceedings for setting aside judgment of conviction dated 24.6.2013, passed by the learned JMFC-III Shimla, further upheld by this Court in Cr.R. No. 148 of 2015.
::: Downloaded on - 09/03/2022 20:10:16 :::CIS 45. While inviting attention of this Court to the compromise .
(Annexure P-2), Mr. Naresh Sharma, learned counsel representing the petitioner, argued that since entire payment of compensation awarded by the learned trial court stands paid to the respondent-complainant, this Court while exercising power under Section 482 Cr.PC can quash the judgment of conviction and order of sentence recorded by the learned trial court. While placing reliance on the judgment dated 21.12.2021, passed by this Court in CrMP No. 2499 of 2021 in Cr.R. No. 79 of 2019, Geeta Devi v. Surinder Singh and Anr, Mr. Naresh Sharma, learned counsel submitted that this Court has ample powers under Section 147 of the Act to compound the offence in those cases where accused already stands convicted. Apart from above, Mr. Sharma, also placed reliance upon judgment dated 13.8.2021, passed by the High Court of Judicature at Allahabad, Lucknow Bench, in "Rishi Mohan Srivastava v. State of UP and Anr" , wherein court while exercising power under Section 482 Cr.PC annulled the judgment of conviction and order of sentence recorded by learned trial court, further affirmed by High Court on the basis of compromise arrived inter-se parties.
6. Mr. Ajay Sharma, learned counsel appearing for respondent No.1-complainant, while fairly admitting factum with regard to compromise ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 5 arrived inter-se parties, submitted that since entire amount of .
compensation awarded by the court below stands received by the respondent-complainant, he shall have no objection in case judgment of conviction and order of sentence recorded by the learned trial court is quashed and set-aside and offence alleged to have been committed by the petitioner under Section 138 of the Act, is ordered to be compounded while exercising power under Section 147 of the Act. Mr. Ajay Sharma, also invited attention of this Court to judgment dated 1.12.2017, passed by this court in Case titled Gulab Singh v. Vidya Sagar Sharma, Latest HLJ 2017(HP) Suppl. 753, wherein this Court recalled its judgment passed in criminal revision in light of provisions contained under Section 147 of the Act, which permits compounding of the offence under Section 138 of the Act.
7. Having heard the learned counsel for the parties and perused the judgments pressed into service by the learned counsel, this Court finds that issue raised in the instant petition stands duly adjudicated by this Court in Geeta Devi's Case (Supra). It would be apt to take note of paras 11 to 15 passed in case titled Geeta Devi' s case supra:
" 11. Having heard learned counsel for the parties and perused the judgment dated 1.12.2017 passed by this Court in Gulab Singh case (supra), this Court finds that issue which arises in the case at hand stands duly adjudicated by this Court. It would be profitable to reproduce para Nos. 9 to 15 of the aforesaid judgment herein:-::: Downloaded on - 09/03/2022 20:10:16 :::CIS 6
"9. Mr. Manohar Lal Sharma, learned counsel representing .
the petitioner, has invited attention of this Court to the judgment passed by Hon'ble High Court of Rajasthan in Naresh Kumar Sharma versus State of Rajasthan & another, Criminal Misc. Application No.371 of 2016 in Criminal Revision Petition No.1267 of 2016, to suggests that in view of amicable settlement arrived inter se the parties, this Court has power to recall its judgment in the light of the provisions contained in Section 147 of the Act, which permits compounding of the offence under Section 138 of the Act. At this stage, it would be profitable to reproduce the judgment passed by Hon'ble High Court of Rajasthan hereinbelow:-
"The accused-petitioner has field this criminal misc. application under section 482 Cr.P.C read with section 147 of Negotiable Instruments Act( for short the 'Act') with a prayer to review/recall the order dated 6.10.2016 passed by this Court in SB Criminal Revision Petition No.1267/2016 in the light of r compromise dated 4.11.2016 subsequently entered between the parties and as a consequences thereof to acquit the accusedpetitioner for the offence under Section 138 of N.I. Act.
Vide order dated 6.10.2016, the aforesaid revision petition filed by the petitioner was dismissed by this Court while upholding and affirming the judgment and order of conviction and sentence passed by the trial Court as well as by the Appellate Court.
It was jointly submitted by the learned counsel for the parties that after the order dated 6.10.2016 the parties have amicably settled their dispute and entered into compromise and the amount in the dispute has been paid by the petitioner to the respondent-complainant. It was further submitted that although the revision petition has been dismissed by this Court on merits vide order dated 6.10.2016, but even then that order can be recalled in the light of provisions of Section 147 of N.I.Act which permits compound of the offence under Section 138 of the Act at any stage and the accused can be acquitted.
In support of their submissions, they relied upon the case of K. Subramanian Vs. R.Rajathi reported in (2010) 15 SCC 352 and order dated 7.7.2015 passed by a Single Bench of Hon'ble Gujarat High Court in S.B. Criminal ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 7 Misc. Application (Recall) No.10232/2015 filed .
in Special Criminal Application No.3026/2014.
On consideration of submissions jointly made on behalf of the respective parties and the material including the compromise entered into between the parties and the fact that the amount in dispute has been paid by the accused-petitioner to the respondent- complainant and the principles of law laid down in the aforesaid decisions, I find it a fit case in the criminal misc. application is to be allowed and the order dated 6.10.2016 is to be recalled.
Consequently, the criminal misc. application is allowed and the order dated 6.10.2016 is recalled and all the orders whereby the accused-petitioner was convicted and sentenced for the offence under Section 138 of N.I. Act are set aside and as a consequence thereof he is acquitted therefrom."
10. Reliance is also placed upon the judgment passed by Hon'ble Gujarat High Court, wherein similar application came to be filed for recalling the judgment passed by the Hon'ble High Court of Gujarat. In the aforesaid judgment, Hon'ble Gujarat High Court, has reiterated that judgment passed by the High Court 8 affirming the judgment of conviction recorded under Section 138 of the Act, can be recalled in view of the specific provisions contained in Section 147 of the Act, which provides for compounding of offence allegedly committed under Section 138 of the Act.
11. The Hon'ble Apex Court in K. Subramanian Vs. R.Rajathi; (2010)15 Supreme Court Cases 352, also in similar situation ordered for compounding of offence after recording of conviction by the courts below, wherein it has been held 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. 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.::: Downloaded on - 09/03/2022 20:10:16 :::CIS 8
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 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 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."
12. The Hon'ble Apex Court in the aforesaid judgment has categorically held that in view of the provisions contained under Section 147 of the Act, read with Section 320 of Cr.P.C, compromise arrived inter se the parties, can be accepted and offence committed under Section 138 of the Act, can be ordered to be compounded.
13. Another question which arise for determination/ adjudication of this Court is with regard to maintainability of present review petition. Admittedly, instant review petition has been filed after withdrawal of Special Leave Petition, preferred by the applicant/ petitioner against the judgment passed by this Court in Criminal Revision No.394 of 2015, wherein conviction/ sentence awarded by the Court below came to be upheld. In the case at hand, Special Leave to Appeal (Crl.) filed by the applicant/petitioner was dismissed as withdrawn vide order dated 18.08.2017. Subsequent to passing of aforesaid order by Hon'ble Apex Court, petitioner/applicant has approached this Court, praying therein for modification/recalling of its judgment dated 10.3.2017, passed in Criminal Revision No.394 of 2015 on the ground that parties ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 9 have amicably settled the matter and entire amount .
stands paid to the respondent/complainant in terms of judgment passed by the learned trial Court.
Learned counsel representing the petitioner/applicant, contended that once the Supreme Court permits withdrawal of a Special Leave Petition without recording reasons, it is as if no appeal was ever filed or entertained, since in the absence of grant of special leave, there is no appeal in existence. Learned counsel further contended that where a Special Leave Petition is permitted to be withdrawn and equally when it is dismissed in limine without recording reasons, the High Court judgment neither merges into any proceedings before the Supreme Court nor is it in any manner affected by the filing and subsequent withdrawal or dismissal of the Special Leave Petition. In support of aforesaid contentions, learned counsel representing the applicant/ petitioner also invited attention of this Court to the judgment passed by the three Judges Bench of the Supreme Court in Kunhayammed Vs. State of Keral (2000) 6 SCC 359, wherein it has been held that after dismissal of SLP in limine, review petition can be filed because at the stage of dismissal of SLP, there exists no appeal in the eyes of law.
14. Before ascertaining the correctness of aforesaid submissions having been made by learned counsel representing the applicant/petitioner, it would be profitable to take note of judgment passed by Hon'ble Delhi High Court in Kanoria Industries Limited & ors. Versus Union of India & Ors on 27th February, 2017, wherein it has been held as under:-
"8. We are in the factual situation of the present case concerned not with a case of dismissal in limine by a nonspeaking order of an SLP preferred against the judgment of which review is sought but with dismissal as withdrawn of the SLP. Though the review petitioners, while seeking to withdraw the SLP also sought liberty to move this Court in review petition but the Supreme Court merely dismissed the SLP as withdrawn and has not stated that the liberty sought had been granted.
9. The question which arises is, whether the dismissal as withdrawn of the SLP, even in the absence of the words "with liberty sought" is to be read as grant of liberty.
10. The review petitioners obviously were of the opinion that without the aforesaid words, they did ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 10 not have liberty to approach this Court by way of .
review and claim to have made an application to the Supreme Court in this regard but which application is stated to have been refused to be listed.
11. In our opinion, it is not for us to venture into, whether the order, notwithstanding having not provided that the review petitioners had been granted liberty, grants liberty or not. It cannot be lost sight of that it is not as if the counsel for the review petitioners, when the SLP came up before the Court, stated that the filing of SLP was misconceived and withdrew the same. The order records that it was "after some arguments" that the counsel for the review petitioners sought permission to withdraw the SLP. It is also not as if the Supreme Court is not known to, while dismissing the SLP as withdrawn, grant such liberty. The order thus has to be read as it is i.e., of dismissal of SLP as withdrawn.
12. Rule 9 of Order XV titled "Petitions Generally" of the Supreme Court Rules, 2013 provides for withdrawal of the petition. Once a proceeding / petition is permitted to be withdrawn, the effect of such withdrawal is as if, it had not been preferred. It is a different matter that the Rules may prohibit the petitioner who so withdraws his petition from refiling the same or even in the absence of such Rules, such refiling may be treated as an abuse of the process or by way of re-litigation. But in law a dismissal of the petition as withdrawn cannot be at par with the dismissal of the petition.
13. Neither counsel has however addressed us on this aspect and has proceeded on the premise as if dismissal as withdrawn is the same as dismissal of the petition.
14. As far as the effects, if any, of dismissal in limine of a SLP on a subsequent review petition before the High Court is concerned, which arise for consideration are firstly whether, Abbai Maligai Partnership Firm and Kunhayammed (supra), both of three Judges Bench hold differently and secondly whether the two deal with different factual situations i.e. of a review having been preferred before the dismissal of SLP or after the dismissal of SLP. We have studied the two judgments in this light.
15. We find that in Kunhayammed (supra) the review petition was filed after the dismissal of SLP. The Supreme Court was approached aggrieved from the order of the High Court overruling the preliminary ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 11 objection as to the maintainability of the review .
petition on the ground of the SLP having been dismissed. Supreme Court held that where the judgment of the High Court has come up to the Supreme Court by SLP and the SLP is dismissed, the judgment of the High Court does not merge in the order of dismissal of SLP and the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it; it may be that the review Court may interfere or it may not interfere depending upon the law and principles applicable to interference in review; but the High Court, if it exercises a power of review or deals with the review application on merits, cannot be said to be wrong in exercising statutory jurisdiction or power vested in it. It was expressly held that review can be filed even after SLP is dismissed and as also before special leave is granted but not after it is granted. It was held that once special leave is granted, the jurisdiction to consider the validity of the High Court's order vested in the Supreme Court and the High Court cannot entertain a review thereafter unless such a review application was preferred in the High Court before the SLP was granted. With respect to Abbai Maligai Partnership Firm (supra) it was observed that the facts and circumstances of the case persuaded the Supreme Court to form an opinion that the tenants were abusing the process of the Court by approaching the High Court and the very entertainment of review petition and then reversing the earlier order was an affront of the order of the Supreme Court. It was explained that the three Judges Bench in Abbai Maligai Partnership Firm (supra) nowhere in the course of judgment relied on the doctrine of merger for taking the view they had taken and rather a careful reading of Abbai Maligai Partnership Firm (supra) also fortified the view taken in Kunhayammed (supra).
16. It would thus be seen that Kunhayammed (supra), though of a Bench of the same strength as Abbai Maligai Partnership Firm (supra), did not read Abbai Maligai Partnership Firm (supra) as laying down anything to the contrary than what was held in Kunhayammed (supra). The Supreme Court having expressly held so, it is not open today to the respondent UOI to contend or for us to hold that there is a conflict in the two.
17. We now proceed to analyze whether Sunil Kumar (supra) carves out any different factual ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 12 scenario in which Abbai Maligai Partnership Firm .
and Kunhayammed (supra) operate.
18. Supreme Court in Sunil Kumar (supra) was concerned with a petitioner who was held to be a black-marketer exploiting helplessness of the poor people of the society and capable of engaging lawyers and found to be abusing the process of the Court and wanting to use the Courts as a safe haven. The subject matter of Sunil Kumar (supra) was a transaction under Section 7 of the Essential Commodities Act, 1955. The petitioner therein was found to have approached the High Court for modifying the order of his conviction after the SLP against the order of conviction had been dismissed and had again preferred the SLP to the Supreme Court against the order of the High Court refusing to modify the order of conviction. It was held that Section 362 of the Code of Criminal Procedure, 1973 puts a complete embargo on the Criminal Court to reconsider after the delivery of judgment as the Court becomes functus officio. In this background when the petitioner relied on Kunhayammed (supra), it was observed that Kunhayammed (supra) has been explained in various subsequent judgments as holding that review petition filed before the High Court after approaching the Supreme Court amounts to abuse of the process of the Court. Reference in this regard was made to Meghmala (supra). However, after holding so, it was further held that the ratio of Kunhayammed (supra) has no application to Sunil Kumar (supra) as Kunhayammed (supra) was dealing with civil cases.
19. We have already noticed above that in Kunhayammed (supra) the review petition was filed after the order of dismissal of the SLP.
20. What we find is that the observations, of preferring review petition after the dismissal of SLP amounting to abuse of the process of the Court, in Abbai Maligai Partnership Firm (supra) as well as in Sunil Kumar (supra) are on a factual finding of the petitioners therein abusing the process of the Court and not on the maintainability of the review petition. Certainly, if we are to find the review petitioners herein also to be abusing the process of the Court by preferring this review petition after withdrawal of the SLP preferred against the judgment of which review is sought, the review petition of the review ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 13 petitioners would also suffer the same fate. However .
it would not make the review not maintainable."
15. Reliance is also placed upon the judgment passed by Hon'ble Apex Court in Kunha Yammed and others versus State of Kerala and others; (2000) 6 Supreme Court Cases 359, wherein it has been held as under:-
"22. We may refer to a recent decision, by Two-
Judges Bench, of this Court in V.M. Salgaocar & Bros. Pvt. Ltd. Vs. Commissioner of Income Tax 2000 (3) Scale 240, holding that when a special leave petition is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non- speaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court.
27.A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 14 Supreme Court which obviously would be binding on .
all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special r leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court".
12. Bare perusal of aforesaid judgment rendered by this Court, which is squarely based upon the judgment passed by Hon'ble Apex Court, reveals that doctrine of merger does not apply in the case of dismissal of SLP. In the case at hand, SLP having been filed by the petitioner/applicant herein came to be dismissed in limini by nonspeaking order and as such, does not result in the merger of impugned order with the order passed by the Hon'ble Supreme Court. Now, next question which needs determination is whether this court after affirming the judgment of conviction and order of sentence recorded by court below can accept the prayer made on behalf of the accused to compound the offence while exercising power under Section 147 of the Act or not.
13. Bare perusal of Section 147 of the Act, reveals that notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), every offence punishable under this Act, shall be compoundable. Section 147 of the Act is in the nature of an enabling provision which provides for the compounding of offence prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub section (a) of Section 320 of the Code of Criminal Procedure, which otherwise state that " no offence shall be compounded except as provided by this section", since section 147 was inserted by way of an amendment to a special law, the same ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 15 will override the effect of sub section (a) of section 320 of the .
Code of Criminal procedure. In this regard reliance is placed upon the judgment rendered by Hon'ble Apex Court in Damodar S. Prabhu versus Sayed Babalal H., (2010) 5 Supreme Court Cases 663, which otherwise lays down the law that court can proceed to compound the offence, if any, under section 138 of the Act in the case where accused already stands convicted.
Section 362 Cr.P.C, provides that save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. As per aforesaid provisions of law judgment/order once singed cannot be altered or reviewed except to correct the clerical or arithmetical error, but expression used in the aforesaid provision of law i.e. "save as otherwise provided by this code or by any other law for the time being in force", enables this Court to consider the prayer made on behalf of the accused for compounding the offence while exercising power under Section 147 of the Act. As has been observed hereinabove, section 147 empowers court to compound every offence punishable under this Act notwithstanding anything contained in the code of criminal procedure.
14. At the cost of repetition, Hon'ble Apex Court in Damodar S case(supra) has categorically held that offence punishable under Section 138 of the Act can be compounded even in those cases where accused stands already convicted.
15. Hon'ble Apex Court in K. Subramanian vs. R. Rajath, (2010)15 Supreme Court Cases 352, as has been taken note by this Court in its earlier judgment passed in Cr.MP No.1198 of 2017 has clarified that having regard to the salutary provisions of Section 147 of the Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, compromise arrived inter"-se parties, can be ordered to be compounded."
8. Careful perusal of the afore judgment reveals that petitioner in that case approached this Court with prayer to compound the offence while exercising power under Section 147 of the Act after dismissal of his SLP filed against the judgment passed by this Court upholding the judgment of conviction and order of sentence passed by the court below. One of the issue decided in the aforesaid judgment was with regard to merger of ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 16 judgment of conviction and order of sentence passed by the court below .
with that of order passed by the Hon'ble Apex Court dismissing the SLP of the accused in limine. Though in the aforesaid case, this Court having taken note of the various judgments passed by the Hon'ble Apex Court held that doctrine of merger does not apply in the case of dismissal of the SLP in limine by non speaking order, but also decided the question " whether this court after affirming the judgment of conviction and order of sentence recorded by the court can accept the prayer made by the accused to compound the offence while exercising power under Section1 47 of the Act or not."
9. This court while placing reliance upon judgment rendered by the Hon'ble Apex Court in case titled Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, has held that though Section 362 Cr.P.C provides that save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error, but aforesaid expression used in the aforesaid provision of law i.e. "save as otherwise provided by this code or by any other law for the time being in force", enables this Court to consider the prayer made on behalf of the accused for compounding the ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 17 offence while exercising power under Section 147 of the Act. Otherwise .
also, Section 147 of the Act empowers this court to compound every offence punishable under the Act notwithstanding anything contained in the Code of Criminal Procedure.
10. High Court of Judicature of Allahabad, Lucknow Bench, in Rishi Mohan Srivastava's case (supra), has dealt with similar issue as is evident from bare reading of para 12 of the judgment, which reads as under:
12. Considering the facts as narrated above, the following two questions arise for consideration -
Whether an order passed by the High Court in the criminal revision petition confirming the conviction can be nullified by the High Court in a petition filed under section 482 Cr.P.C. noticing subsequent compromise of the case by the contesting parties ?
11. After having taken note of the provisions contained under Section 320 Cr.PC and Section 147 of the Negotiable Instruments Act, the High Court of Allahabad held that inherent powers under Section 482 Cr.P.C. can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. It has been further held by the Allahabad High Court that court can always take note of any miscarriage of justice and prevent the same by exercising its powers under Section 482 of Cr.P.C. Relevant paras of Rishi Mohan Srivastava's case read as under:
::: Downloaded on - 09/03/2022 20:10:16 :::CIS 18"15. It is well settled that inherent powers under section 482 Cr.P.C.
.
can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. It is also well settled that if an effective alternative remedy is available, the High Court will not exercise its inherent power under this section, specially when the applicant may not have availed of that remedy.
16. Inherent powers under Section 482 of Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. The court can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution.
17. The High Courts in deciding matters under Section 482 should be guided by following twin objectives, as laid down in the case of Narinder Singh vs. State of Punjab (2014) 6 SCC 466:
i. Prevent abuse of the process of the court.
ii. Secure the ends of justice.
iii. To give effect to an order under the Code.
18. In the instant case, it is true that this Court had dismissed the criminal revision and upheld the conviction and sentence passed by the court below but it cannot be lost sight of the fact that this Court has the power to intervene in exercise of the powers vested under section 482 Cr.P.C. only with a view to do the substantial justice or to avoid miscarriage and the spirit of the compromise arrived at between the parties. This is perfectly justified and legal too.
19. I have considered the judgments cited by the learned counsel for the petitioner as well as by the learned Counsel for the State and other decisions of the Hon'ble Apex Court and I do not think it necessary to enlist those decisions which are taken into consideration for the purpose of the present proceedings.
20. In the instant case, the petitioner is invoking the inherent power as vested under section 482 Cr.P.C. after the dismissal of the revision petition under section 397 Cr.P.C. read with section 401 Cr.P.C. In this circumstances, I have to examine the maintainability of the present ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 19 petition under section 482 Cr.P.C. and also to examine as to whether .
for entertaining the aforesaid petition, any special circumstances are made out or not. The gist of the ratio is reflected in the decision of the Hon'ble Apex Court in the case of Rajinder Prasad vs. Bashir and Others; AIR 2001 SC 3524. In that case, it was contended before the Apex Court that as per the earlier revision filed by the accused persons under section 397 of the Code has been rejected by the High Court vide order dated 13.05.1990, they had no right to file the petition under section 482 Cr.P.C. with the prayer for quashing the same order. While dealing with the above contention, the Apex Court observed that -
"We are of the opinion that no special circumstances were spelt out in the subsequent application for invoking the jurisdiction of the High Court under section 482 of the Code and the impugned order is liable to be set aside on this ground alone."
So it can be legitimately argued and inferred and held that in all cases where the petitioners are able to satisfy this court that there are special circumstances which can be clearly spelt out, subsequent application invoking inherent powers under section 482 Cr.P.C. can be moved and cannot be thrown away on the technical argument as to its sustainability.
21. In the case of Krishan Vs. Krishnaveni, reported in (1997) 4 SCC 241, Hon'ble the Apex Court has held that though the inherent power of the High Court is very wide, yet the same must be exercised sparingly and cautiously particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may in its discretion prevent the abuse of process or miscarriage of justice by exercising jurisdiction under section 482 of the Code.
22. For adjudicating the instant petition, the facts as stated hereinabove are very relevant. Here, the petitioner has attempted to invoke the jurisdiction of this court vested under section 482 Cr.P.C. The embargo of sub section 6 of section 320 Cr.P.C. as pointed out by learned AGA would not come in the way so far as the relief prayed in this petition.
23. I am not in agreement that when the adjudication of a criminal offence has reached to the state of revisional level, there cannot be any compromise without permission of the court in all case including the offence punishable under 'N.I. Act' or the offence mentioned in Table-1 (one) can be compounded only if High Court or Court of Sessions ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 20 grants permission for such purpose. The Court presently, concerned .
with an offence punishable under 'N.I. Act'.
24. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point I can refer to the following extracts from an academic commentary [Cited from : K.N.C. Pillai, R.V. Kelkar's Criminal Procedure, 5th Edition :
"17.2 - compounding of offences - A crime is essentially a wrong against the society and the State. Therefore, any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. However, where the offences are essentially of a private nature and relatively not quite serious, the Code considers it expedient to recognize some of them as compoundable offences and some others as compoundable only with the permission of the court..."
25. Section 147 of NI Act begins with a non obstante clause and such clause is being used in a provision to communicate that the provision shall prevail despite anything to the contrary in any other or different legal provisions. So, in light of the compass provided, a dispute in the nature of complaint under section 138 of N.I. Act, can be settled by way of compromise irrespective of any other legislation including Cr.P.C. in general and section 320 (1)(2) or (6) of the Cr.P.C.
in particular. The scheme of section 320 Cr.P.C. deals mainly with procedural aspects; but it simultaneously crystallizes certain enforceable rights and obligation. Hence, this provision has an element of substantive legislation and therefore, it can be said that the scheme of section 320 does not lay down only procedure; but still, the status of the scheme remains under a general law of procedure and as per the accepted proposition of law, the special law would prevail over general law. For the sake of convenience, I would like to quote the observations of Hon'ble the Apex Court in the case of Municipal Corporation, Indore vs. Ratnaprabha reported in (AIR 1977 SC 308) which reads as under :
"As has been stated, clause (b) of section 138 of the Act provides that the annual value of any building shall "notwithstanding anything contained in any other law for the time being in force"
be deemed to be the gross annual rent for which the building might "reasonably at the time of the assessment be expected to be let from year to year" While therefore, the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be so "notwithstanding anything contained in any other law for the time being in force". It appears ::: Downloaded on - 09/03/2022 20:10:16 :::CIS 21 to us that it would be a proper interpretation of the provisions of .
clause (b) of Section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under Section 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, but, where this is not so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permissible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. This view will, in our opinion, give proper effect to the non-obstante clause in clause (b) with due regard to its other provision that the letting value should be "reasonable"
26. The expression 'special law' means a provision of law, which is not applicable generally but which applies to a particular or specific subject or class of subjects. Section 41 of Indian Penal Code stands on the same footing and defines the phrase special law. In this connection I would like to quote the well accepted proposition of law emerging from various observations made by the Hon'ble Apex Court in different decisions as a gist of the principle and it can be summarised as under:
"When a special law or a statute is applicable to a particular subject, then the same would prevail over a general law with regard to the very subject, is the accepted principle in the field of interpretation of statute."
27. In reference to offence under section 138 of N.I. Act read with section 147 of the said Act, the parties are at liberty to compound the matter at any stage even after the dismissal of the revision application. Even a convict undergoing imprisonment with the liability to pay the amount of fine imposed by the court and/or under an obligation to pay the amount of compensation if awarded, as per the scheme of N.I. Act, can compound the matter. The complainant i.e. person or persons affected can pray to the court that the accused, on compounding of the offence may be released by invoking jurisdiction of this court under section 482 Cr.P.C. If the parties are asked to approach the Apex Court then, what will be situation, is a question which is required to be considered in the background of another accepted progressive and pragmatic principle accepted by our courts that if possible, the parties should be provided justice at the door step. The phrase "justice at the door step" has taken the court to think and reach to a conclusion that it can be considered and looked into as one of such special circumstances for the purpose of compounding the offence under section 147 of the N. I. Act."
::: Downloaded on - 09/03/2022 20:10:16 :::CIS 2212. Needless to say, the operation or effect of a general Act can .
be curtailed by special Act even if a general Act contains a non obstante clause and as such, provisions contained under Section 320 Cr.P.C.
would not come in the way in recording the compromise or in compounding the offence punishable under section 138 of the Act. To the contrary, provisions of section 147 of the Act though start with a non obstante clause but have overriding effect on the provisions contained under section 320 Cr.P.C.
13. Consequently, in view of the detailed discussion made herein above as well as law taken note herein above, this Court finds no impediment in accepting the prayer made in the instant petition and accordingly, same is allowed, as a consequence of which, judgment of conviction and order of sentence dated 24.6.2013/16.7.2013 in case No. 58-3 of 2012/11 passed by the learned JMFC-III, Shimla, is annulled in terms of compromise arrived inter-se parties and petitioner accused is acquitted of the notice of accusation. In the aforesaid terms, present petition is disposed of alongwith pending applications if any.
2nd March, 2022 (Sandeep Sharma),
(manjit) Judge
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