Gujarat High Court
Kirpalsingh Pratapsingh vs Salvinder Kaur Hardipsingh Lobana on 7 April, 2004
Equivalent citations: (2004)2GLR1211, 2004 CRI. L. J. 3786, (2004) 21 ALLINDCAS 200 (GUJ), 2004 (21) ALLINDCAS 200, (2005) 1 ICC 323, (2004) 3 GCD 2307 (GUJ), (2004) 4 ALLCRILR 535, (2004) 4 CIVLJ 97, (2004) 2 GUJ LR 1211, (2004) 2 GUJ LH 544, (2005) 1 BANKCLR 145, 2004 CRILR(SC MAH GUJ) 516
Author: C. K. Buch
Bench: C.K. Buch
JUDGMENT C. K. Buch, J.
1. The petitioner of Special Criminal Application No. 1229 of 2003 is the original accused of Criminal Case No. 3616 of 2000 tried and convicted by the learned J.M.F.C., 4th Court, Vadodara for offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'the N. I. Act') and the petitioner of other petition i.e. Special Criminal Application No. 209 of 2004 is the original complainant of said criminal case.
2. For the sake of convenience and brevity, both these petitioners are referred to as accused and complainant respectively.
3. The accused Salvinder Kaur Hardipsingh Lubana has moved this Court under Article 226 of the Constitution of India and under Section 482 of Cr.P.C. for the following main reliefs mentioned in Para 12 of the memo of the petition :-
"(b) Your Lordships may be pleased to suspend the order passed by the learned Judicial Magistrate, First Class, Vadodara in Criminal Case No. 3616 of 2000 dated 4-10-2002 and the same orders confirmed by the learned Additional Sessions Judge (Fast Track Court No. 2), Vadodra in Appeal No. 16 of 2002 below Exh. 11 dated 14-11-2003 pending hearing and final disposal of this Special Criminal Application;
(c) Your Lordships may be pleased to quash and set aside the orders passed by the learned Magistrate in Criminal Case No. 3616 of 2000 dated 4-10-2002 and the orders passed by the learned Sessions Judge (Fast Track Court No. 2), Vadodara dated 14-11-2003 below Exh. 11 and Your Lordships may be pleased to give benefit under Section 147 of the Negotiable Instruments Act by compounding the offence."
4. The accused had earlier filed one Criminal Revision Application being Criminal Revision Application No. 606 of 2003 challenging the legality and validity of both the orders mentioned in the relief clause referred to hereinabove but the same came to be dismissed by this Court (Coram : D. H. Waghela, J.), in limine on the date of admission i.e. 12-12-2003. When the revision application was listed for admission hearing, the Court was requested to postpone the admission hearing and according to the learned Counsel appearing for the accused-revisioner there was a scope for compromise between the parties. The accused being a lady, the settlement talks were very well on and it is submitted to this Court by Mr. Shah learned Counsel that, he was not equipped with the documents of settlement and the amount agreed between the parties, was remained to be paid. It was mentioned before the Court that the petitioner-accused is in the hope that some settlement may be worked out, so in order to avoid imprisonment of a lady-petitioner, the admission hearing may be postponed or that notice may be issued to the otherside, even after imposing costs upon the petitioner; or in other words the accused could have been directed to bring actual written compromise arrived at between the parties. In view of the provisions of Section 147 of N.I. Act read with Sections 397 and 401 of Cr.P.C., it was possible for the accused to have acquitted on compounding of the offence and out of Court compromise/settlement. It is, therefore, submitted that in exercise of the powers vested with the Court under Section 482 Cr.P.C. by accepting the fact of compromise and compounding of offence between (sic.) should quash the order of conviction and sentence passed by the learned J.M.F.C. and confirmed in appeal by the learned Addl. Sessions Judge by his order dated 14-10-2003.
5. The Special Criminal Application No. 1229 of 2003 was listed for admission hearing on 26-12-2003 and while issuing Rule making it returnable on 21-1-2004 the accused was granted/extended time to surrender till the next returnable date. On that day original complainant was also present in the Court and it was mentioned by the accused that amount of fine shall be paid by the petitioner on the returnable date. I would like to quote the order passed by this Court on 26-12-2003 :
"...The Revision Application preferred from the judgment of the learned Additional Sessions Judge was also summarily dismissed by this Court on 12-12-2003. Therefore, the judgments of this Court relied upon by the learned Counsel, namely Naimesh P. Pandya v. State, reported in 1998 (2) GCD 1529 (Guj.), Rupabhai B. Bharwad v. State, reported in 1994 (1) GLR 415 nor the judgment of the Hon'ble Supreme Court in B.S. Joshi v. State of Haryana, reported in AIR 2003 SC 1386 directly applied in the facts of the present case. Under the circumstances, it was submitted that extraordinary power and jurisdiction of this Court under Article 226 of the Constitution and Section 482 of the Cr.P.C. ought to be exercised to relieve the petitioner of the sentence by way of compounding of offence adopting an analogy of the provisions of Section 320 of the Cr.P.C. even though no proceedings are pending. Sub-section (9) of Section 320 of Cr.P.C. clearly prohibits compounding of offence except as provided by that Section. These circumstances, the petition requires consideration."
6(i). On resistance of learned P.P. as to the maintainability of the petition under Section 482 of Cr.P.C. in the matters where the High Court has dismissed the revision application on merits, the original complainant approached the Court by filing revision application being Cri. Revision Application No. 66 of 2004 challenging sustainability of both the orders i.e. first order of conviction and sentence and confirmed in appeal by the learned Addl. Sessions Judge under Section 397 read with Section 401 Cr.P.C.
6(ii). Said revision application came to be listed for admission hearing on 7-2-2004 and it was decided to hear the revision application along with the above mentioned Special Criminal Application moved by the accused. So both the matters were listed before the Court on 24-2-2004 and the complainant was permitted to convert the Criminal Revision Application No. 66 of 2004 into a substantive petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. and thus both these writ petitions are before the (sic.) for disposal.
6(iii). As both the petitions are in connection with the two decisions (and also the Revision Application was dismissed in limine) they are heard simultaneously and are being disposed by this common judgment. 7(i). The prayers sought for by the complainant in this petition are just similar to the prayer made in the petition filed by the accused. However, it is inter alia prayed that the accused may be asked to pay the amount of interest even on the amount of settlement received by him under a compromise i.e. compounding of offence.
7(ii). However, Ms. Priti Pandya learned Counsel for the complainant has fairly submitted that she does not press this prayer as the same cannot be granted in a petition of the present nature.
8(i). Original criminal case came to be instituted on a private complaint filed by the petitioner of Special Cri. Application No. 209 of 2004 for the offence published under Section 138 of N.I. Act on the allegation that a cheque issued to him by the accused Salvinder Kaur has been dishonoured, and therefore, the offence punishable under the said Section of N.I. Act has been committed. On evaluating the evidence, both oral and documentary, the accused was convicted and was sentenced to suffer simple imprisonment for six months and a fine of Rs. 5,000/-. Said order of conviction was challenged by way of appeal in the Court of Session and while dealing with the appeal, the learned Addl. Sessions Judge confirmed the order of learned J.M.F.C. It is observed by this Court, while dealing with Criminal Revision Application No. 606 of 2003 that there is no illegality, irregularity or infirmity in the order nor the same has been pointed out from the proceedings of the trial Court as well as the appellate Court. The Revision Application was based mainly on the grounds which were placed before both the Courts below and it is the say that there were other partners and officers who were responsible for conduct of the business of the accused and none of them were joined as co-accused persons. In absence of such persons as co-accused, no complaint could sustain.
8(ii). While dismissing the revision application this Court has held that the appellate Court has correctly confirmed the order of conviction recorded by the learned J.M.F.C. and it has been correctly held by the appellate Court that, whether to join other persons/officers who may be responsible for dishonour of the cheque, as co-accused or not, was the choice of the complainant when the accused has undisputedly signed the instrument - cheque.
9. The accused and the complainant who are before the Court with their respective petition, have raised the points which may result into acquittal of the accused on compounding of offence in view of the provisions of Section 147 of N.I. Act.
10(i). Certain statements and submissions made before the Court by the learned Counsel Mr. Shah and Ms. Pandya for the respective party, may be mentioned in short, being found relevant :
10(ii). The accused Salvinder Kaur through the male members of her family was negotiating for a compromise with the complainant especially in the background of the role played by the other partners in the issuance of the cheque in question and the liability of the amount incurred by the accused, because of the issuance of the cheque in question. The complainant and the accused were meeting in the corridors of the Courts, practically at all the stages of the proceedings, but ultimately Mr. Shah and Ms. Joshi have jointly submitted that, the date on which the revision application filed by the accused came to be dismissed, no positive communication was sent to the learned Counsel appearing for the accused-petitioner because, though the parties had settled the terms and determined the amount to be paid to the complainant, the actual payment was to be made possible.
10(iii), It is submitted that the learned Advocate and the complainant also were not in a position to admit the factum of compromise as the actual payment of the entire amount agreed, was not made to the complainant. The Court, while dealing with both the petitions, with a view to do substantial justice or to avoid miscarriage of justice, can consider the salient features emerging from the record itself, especially when once, both the parties i.e. accused and the complainant were before the Court and their intention to finally compound the matter was expressed earlier. It is submitted by learned A.P.P. Mr. Pandya that under the spirit of compromise, the complainant has received an amount of Rs. 1,05,000/- on 15-12-2003. The amount was determined on or about 15-11-2003 i.e. after the order passed by the appellate Court confirming the order of conviction and sentence passed by the trial Court. Till the date of dismissal of the Revision Application filed by the original accused, no formal payment, though agreed, was not (sic.) made, and therefore, the original complainant was advised not to accept the effect of actual compromise or compounding of offence and it was not even possible for the accused as committed by her to press into service the compromise arrived at between the parties as the same was to be enforced and made effective on actual payment of the amount determined during negotiations. So, if the accused is now asked to undergo sentence by complainant, he shall have to morally to return the amount received under a compromise,
11. I have carefully considered the compromise arrived at between the parties and thereafter reduced the same into writing on 15-12-2003, the day on which the actual payment was made. The language of the written compromise and the affidavit of Kirpalsingh Pratapsingh Mori are very relevant in the background of the principle of earlier orders passed by the Court enlarging the time to the accused to surrender and the consent or assent of the original complainant in this regard. The revisional Court while disposing of the revision application filed by the original accused on 12-12-2003 had also granted some time to surrender and the same has been extended by subsequent orders passed in the background of consent on behalf of the original complainant and in absence of formal resistance by the State.
12. This Court while dealing with the Misc. Criminal Application No. 10100 of 2003 with Criminal Revision Application No. 449 of 2001 has permitted the parties to compound the offence even after the disposal/dismissal of revision application filed, challenging the conviction and confirmation of sentence by the appellant. The Court in the order dated 12-12-2003 has observed that -
"....It is also jointly submitted that the said accused person has, after conviction and confirmation of the sentence by the appellate Court, surrendered to the jail on 17-11-2003 and, subsequent to that, paid the full amount and settled the dispute to the satisfaction of the original complainant. The amount of fine of Rs. 5,000/- is also paid. On that basis, it was the joint request of the contesting parties that by exercising the extraordinary and inherent powers of this Court under Section of the Cr.P.C. to secure the ends of justice the order of punishment may be interested (sic.) so as to reduce the sentence of imprisonment to the period already undergone by the accused person without disturbing the conviction.
Accordingly and in the aforesaid peculiar circumstances of the cases, by consent, the original order of conviction and sentence in Criminal Case No. 668 of 1999 disposed by the order dated 6-9-2001 by the learned Judicial Magistrate, First Class, Modasa shall stand modified to the extent that the original accused person convicted of the aforesaid offence shall, instead of rigorous imprisonment of one year, undergo the imprisonment only upto 13-12-2003 and he shall be released on that day if he is not required in any other cases....."
13. It is true that this Court had disposed of finally the revision application prior to the above said order came to be passed in the above referred decision challenging the order confirming the conviction and sentence passed by the appellate Court. But it is relevant to note that though the revision application was not pressed on merit, this Court has intervened in exercise of the powers vested under Section 482 Cr.P.C. only with a view to do substantial justice or to avoid miscarriage and the spirit of the compromise arrived at between the parties. This is perfectly justified and legal too.
14. The resistance placed by learned A.P.P. Ms. Nandini Joshi is that in view of the provisions of Sub-section (6) of Section 320 Cr.P.C. and the observations made by the Apex Court in the case of Tanveer Aquil v. State of Madhya Pradesh and Anr., reported in 1990 (Supp.) SCC 63 the parties should be relegated to the Apex Court to initiate appropriate proceedings to get the actual effect of compromise arrived at between the parties. In the case of Tanveer Aquil (supra) the appellant was convicted under Section 324 I.P.C. and was ordered to suffer R.I. for one year and to pay a fine of Rs. 500/-. After the pronouncement of the judgment by the High Court the learned Counsel appeared and pleaded for an opportunity of hearing and at that stage the High Court again heard the matter and added a postscript in the judgment confirming the conviction and sentence. The petitioner thereafter had moved the High Court for a compromise to compound the offence. It was submitted to the High Court that the accused has paid a sum of Rs. 3,500/- to the complainant and the learned Counsel for the complainant confirmed of having received the amount of Rs. 3,500/- in token of the compromise arrived between the parties. In Para 1 of the cited decision the Apex Court has observed that -
".....But the High Court did not and indeed could not take into consideration that application since it has deposed of the matter already."
15. So, it is the say of learned A.P.P. Ms. Joshi that when this Court has already rejected the revision application on merits the parties or any one of them can be permitted to place compromise and to get an order of acquittal from the very Court, is the question. Therefore, in more than one decisions, the Apex Court has observed that the petition invoking inherent powers under Section 482 Cr.P.C. is not maintainable when the earlier revision application filed under Section 397 Cr.P.C. read with Section 401 Cr.P.C. seeking same or similar relief, when dismissed on merit, or has not pressed. However, in the same way the Apex Court has observed in more than one cases that such petitions, though otherwise, are not maintainable, can even be entertained when special circumstances are made out. These observations are in reference to third part of Section 482 of Cr. P.C.
16. I have considered the decisions cited by the learned Counsel for the respective party and some other decisions of the 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. But ultimately one balanced principle has emerged that the petitions invoking inherent powers under Section 482 Cr.P.C. after dismissal/disposal or revision application under Section 397 Cr.P.C. read with Section 401 Cr.P.C., are not maintainable by the same party, more so when no special circumstances are made out. The gist of this ratio is reflected in the decision reported in AIR 2001 SC 3524 in the case of Rajinder Prasad v. Bashir and Ors. It was contended before the Apex Court that as the earlier revision petition filed by the accused persons under Section 397 of the Code has been rejected by the High Court vide order dated 13-7-1990, they had no right to file the petition under Section 482 of the Code with prayer for quashing the same order. While dealing with the above contention the Apex Court observed that :
".....We do not agree with the arguments of the learned Counsel for the respondents that as the earlier application had been dismissed as not pressed, the accused had acquired a right to challenge the order adding the offence under Section 395 of the Code......." (i.e. I.P.C.) It is further 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..."
17. So 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. The Apex Court in case of Rajendra Prasad (supra) was dealing with a case related to first part of Section 482 Cr. P.C. but, when it comes to third part, the approach should remain more pragmatic and indirect relegation to Supreme Court, if legally possible, can be prevented.
18. In the case of Krishnan v. Krishnaveni, reported in 1997 (4) SCC 241 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 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.
19. For the purpose of the present decision, the facts stated hereinabove are very relevant. On 12-12-2003 one adjournment or issuance of notice for verification of factum of actual negotiation/compromise and date of payment, could have prevented the failure of judicial mechanism and a person who is already an accused-convict who has compounded the offence, but was arranging the actual payment could have obtained the order of acquittal and avoided formal order of confirmation of conviction practically at the last stage of litigation. Whether formal payment could have been deferred under Court's order is also a question.
20. Here, the petitioners have also simultaneously attempted to invoke the jurisdiction of this Court vested under Article 226 of the Constitution of India read with Section 482 Cr.P.C. So both the petitioners, in stricto sense the accused and the complainant, are not under obligation of Section 482 of Cr.P.C. So the present petitioners stand on a better legal footing.
21. The embargo of Sub-section (6) of Section 320 Cr.P.C. pointed out by Ms. Joshi learned A.P.P. would not come in the way so far as the relief prayed in both the petitions are concerned. I would like to reproduce the relevant part of Section 320 of Cr.P.C. :
"Section 320(1) The offences punishable under the Sections of the Indian Penal Code specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table.
(2) The offences punishable under the Sections of the Indian Penal Code specified in the first two columns of the Table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that Table.
(3) ...
(4) ...
(5) ...
(6) A High Court or Court of Session acting in the exercise of its powers of revision under Section 401 may allow any person to compound any offence which such person is competent to compound under this Section."
22. 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 cases including the offence punishable under N.I. Act or the offence mentioned in Table I (one) can be compounded only if High Court or Court of Session grants permission for such purpose. The Court presently, concerned with an offence punishable under N.I. Act. So it is relevant to quote Section 147 of the N.I. Act :
"Section 147. Offences to be compoundable :- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (II of 1974), every offence punishable under this Act shall be compoundable."
23. Section 147 of N.I. 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 Sections 320320(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 crystallises certain enforceable rights and obligation. So 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. It is not necessary to enlist the authorities propounding this proposition of law available on this point. But for the sake of convenience, I would like to quote what the Apex Court has stated in the case of Municipal Corporation, Indore v. Ratnaprabha reported in AIR 1977 SC 308 where the Apex Court was dealing with similar principle and proposition of law of interpretation while dealing with the language of non-obstante clause on the question of construction, it has been observed that :
"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 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"."
Though the facts are materially different the ratio can be applied. The observations for similar clause made by the Apex Court in the case of Makbul Singh v. State of Punjab, reported in AIR 1999 SC 1131 are also relevant for our purpose; wherein the Apex Court has stated that non-obstante clause in Section 32(a) of the N.D.P.S. Act has overriding effect on powers of suspension, commutation and remission provided under the Cr.P.C.
24(i). The expression "special law" means a provisions 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'. Sometimes, a particular act or part of a procedural law may be considered as general and can be given effect to with reference to some act. But it may be special with reference to other act.
24(ii). In this connection I would like to quote the well accepted proposition of law emerging from various observations made by the Apex Court in different decisions as a gist of the principle and it can be summarised that, "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."
The operation or effect of a general Act may be curtailed by special Act even if a general Act contains a non-obstante clause. But here is not a case where the language of Section 320 Cr.P.C. would come in the way in recording the compromise or in compounding the offence punishable under Section 138 of the N.I. Act. On the contrary provisions of Section 147 of N.I. Act though starts with non-obstante clause, is an affirmative enactment and this is possible to infer from the scheme that has overriding effect on the intention of legislature reflected in Section 320 Cr.P.C.
24(iii). The submission of Ms. Joshi learned A.P.P., if considered in this perspective, then also, it would be difficult to accept that Sub-section (6) of Section 401 (sic.) of Cr. P.C. shall have an overwinding effect or prevailing effect over the intention of the legislature reflected in Section 147 of N.I. Act and it would not be legal to hold that merely because the litigation has reached to the stage of revision, grant of previous permission by the Court to place the compromise on record and to compound the offence, is a condition precedent.
24(iv). The Apex Court, while dealing with Section 41 of Indian Penal Code in the case of Kaushalya Rani v. Gopal Singh, reported in AIR 1964 SC 260 has observed that the expression 'general law' and 'special law' are relative terms and referred to a particular subject dealt with by respective act so that it is not possible logically to label any set of laws as being general law or special law. The stamp law contained in the Stamp Act will come under description of a special law in relation to crime in connection with the said law. But still, the law as regards Stamp Act will be a general law. The Court is aware that the expression 'special law' defined in Section 41 of Indian Penal Code cannot be taken to mean only enactment which creates fresh offences not made punishable under the Indian Penal Code. But undisputedly the offence made punishable under Section 138 N.I. Act is a subject not specifically dealt with by Indian Penal Code. The liabilities created by Sections 138, 139, 141 and 143 of N.I. Act are in contemplation with an offence otherwise not contemplated by Indian Penal Code. In this background, Section 147 of N.I. Act would prevail over the scheme including Sub-section (6) of Section 320 of Cr. P.C.
25. The offence punishable under Section 138 N.I. Act is not an economic offence within the meaning of the economic offence so far as the applicability of Limitation Act, but still it is an offence falling within the compass of offences against property within the meaning of Chapter XVII of Indian Penal Code. Without entering into the point whether existence of mens rea is required to be brought on record legally to bring home the charge against the accused of the offence under Section 138 of N.I. Act, atleast can be inferred that the intention of legislature while inserting Section 147 of the N.I. Act was clear that the aggrieved party can compound the offence. On a plain reading of Section 147 of N.I. Act, it is clear that the same does not confer any obligation to obtain permission for entering into a compromise or to compound the offence.
26. Merely because the litigation has reached to a revisional stage or that even beyond that stage, the nature and character of the offence would not change automatically and it would be wrong to hold that at revisional stage, the nature of offence punishable under Section 138 of the N.I. Act should be treated as if the same is falling under Table-II of Section 320 Cr.P.C. It will be difficult to accept the proposition put forward by Ms. Joshi learned A.P.P. that even if the offence made punishable under I.P.C. and reference to Sub-section (1) of Section 320 i.e., Table I shown in Section 320 Cr.P.C. it cannot be compounded without prior permission. I would like to reproduce some part of the Statement of Objects and Reasons of the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002 :
"Negotiable Instruments Act, 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penalties in case of dishonours of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1881, namely, Sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonours of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act.
2. A large number of cases are reported to be pending under Section 138 to 142 of the Negotiable Instruments Act in various Courts in the country. Keeping in view the large number of complaints under the said Act, pending in various Courts, a Working Group was constituted to review Section 138 of the Negotiable Instruments Act, 1881 and make recommendations as to what changes were needed to effectively achieve the purpose of that Section.
3 xxx xxx xxx
4. Keeping in view the recommendations of the Standing Committee on finance and other representations, it has been decided to bring out, inter alia the following amendment in the Negotiable Instruments Act, 1881, namely-
(i) xxx xxx xxx (ii) xxx xxx xxx (iii) xxx xxx xxx
(iv) to prescribe procedure for dispensing with preliminary evidence of the complainant.
(v) xxx xxx xxx (vi) xxx xxx xxx (vii) to make the offences under the Act compoundable. 5. xxx xxx xxx 6. The Bill seeks to achieve the above objects."
27. The country is under the process of and progress towards globalisation. So the intention of the legislature and object of enacting "Banking", Public Financial Institutions and the Negotiable Instrument Laws (Amended Act), 1988 and subsequent enactment i.e. Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002 leads this Court to a conclusion that the offence made punishable under Section 138 of N.I. Act is not only an offence qua property but it is also of the nature of an economic offence, though not covered in the list of statutes enacted in reference to Section 468 of Cr.P.C. referred to hereinabove. So the parties, in reference to offence under Section 138 N.I. Act read with Section 147 of the said Act 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. read with Article 226 of the Constitution of India.
28(i). If such interpretation is made that even after conclusion of all the proceedings a criminal case can be compounded then whether it would open Pandora box and would bring multiple proceedings ? One also can pause a question that such interpretation of law by the Court and exercise of inherent powers, would take the accused-defaulter to fight out the litigation till the last stage and thereafter the defaulter-accused can ask to accept compromise in the matter and in the circumstances whether this would be a healthy situation when the society is craving for and trying to carve out a value based life to one and all ? These questions are all ifs and buts. Courts of this country have efficiently dealt with such hypothetical situations. This and such other contingencies can be taken care of if the purpose of enacting the law is to be achieved in true perspective. When a substantive petition is brought in such a situation or contingency, then the Court at the relevant point of time can positively insist that either the complainant or the person authorised by the complainant victim of criminal wrong should be a party-petitioner to such petition or atleast a party-respondent supporting the say of the petitioner that the grievance is settled to the satisfaction and the convict may be either acquitted or released from the prison or any other appropriate order may be passed.
28(ii). Technically speaking, in such an eventuality the fine imposed if not paid to the State or the same is required to be refunded to the person released or acquitted on compounding the offence, then the Court while passing orders dealing with such petitions, the parties can be fastened with the liability of costs for the contingency created by them in protracting the litigation and not compounding the offence at appropriate stage. Thus, at appropriate stage, the Court can take care of the fact situation while dealing with such petitions/revisions pending in the Civil Court qua the same transaction.
29. The Court is aware about one accepted principle of law and the principle governing the concept of judicial restraint that unless the Court is asked to answer a particular point, normally the Court should not venture to deal with the points which are not raised by any of the parties. But when the Court was dealing with the said two Special Criminal Applications certain queries were put during hearing to the learned Counsels appearing for the parties and the points discussed were a matter of discussion in reference to Sub-section (6) of Section 320 Cr.P.C., Section 147 of N.I. Act and the jurisdiction of this Court under Section 482 of Cr.P.C. read with Article 226 of the Constitution of India. The Court is also aware of other principle of law that when a thing is required to be done in a particular way (provided under a law or rules framed thereunder) then it should be done in that manner only. But when the jurisdiction of this Court being very wide under Article 226 of the Constitution of India read with third part of Section 482 Cr.P.C. the Court can bring legal resolution. If all parties are asked to approach the Apex Court then, what will be situation, is 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 this Court to think and reach to a conclusion that it can be considered and looked into as one of such special circumstances especially when grant of previous permission to enter into compromise for the purposes of compounding offence is not made a condition precedent in Section 147 of N.I. Act. Of course, the parties compounding the offence under Section 138 of N.I. Act obviously are bound to satisfy the conscious of the Court on facts, when the jurisdiction under Article 226 of the Constitution of India read with Section 482 Cr. P.C. is invoked with readiness and willingness to pay the reasonable amount of costs, if awarded while dealing with such petitions.
30. The Court is inclined to hold accordingly only because there is no formal embargo in Section 147 N.I. Act. So this principle would not help any convict in any other law where other applicable independent provisions are existing as the offence punishable under Section 138 of the N.I. Act is distinctly different from the normal offences made punishable under Chapter XVII of I.P.C. (i.e. the offences qua property).
31. In the circumstances, it is hereby declared that the compromise arrived between the parties to this litigation out of Court is accepted as genuine and the order of conviction and sentence passed by the learned Sessions Judge, Fast Track Court, Vadodara, therefore, on the given set of facts are hereby quashed and set aside as this Court intends, otherwise to secure the ends of justice as provided under Section 482 Cr.P.C. Obviously the order disposing Revision Application would not have any enforceable effect.
32. In view of the above, the accused-Salvinder Kaur Harditsingh Lobana shall not be under obligation to surrender to the jail authorities and shall be treated as acquitted on account of compounding of the offence with the complainant/person affected.
33. Accordingly, both the petitions are required to be allowed and they are allowed. Rule made absolute in both the petitions in the above terms. Both the petitioners shall pay costs of Rs. 2,500/- (Two thousand five hundred) each to the respondent-State.