Himachal Pradesh High Court
Kusum Raj vs . Ram Chander (Deceased) on 3 April, 2025
Kusum Raj vs. Ram Chander (deceased) through LRs and another Cr. Revision No. 137 of 2012 Reserved on: 07.03.2025 03.04.2025 Present: Mr. Imran Khan, Advocate for the petitioner.
Ms. Pragti, Advocate, vice Mr. Sandeep Sharma, Advocate, for respondent No.1(a) and 1(b). Mr. Lokender Kutlehria, Additional Advocate General, for respondent No.2-State.
Cr.MP No. 282 of 2024 The applicant/petitioner has filed the present application under section 147 of the Negotiable Instruments Act 1881, read with section 482 of the Criminal Procedure Code for the compounding of the offence. It has been asserted that the applicant/petitioner has filed a revision, which is pending adjudication before this court. The applicant has deposited the entire compensation amount at the very initial stage. Since the entire compensation amount has been deposited, the court can compound the offence punishable under Section 138 of the Negotiable Instruments Act. No fruitful purpose would be served by sending the applicant behind the bars. The complaint cannot be used as an arm-twisting method to recover the time-barred debt, which otherwise was not claimed by the respondent/complainant. The applicant/petitioner is ready and willing to comply with the orders passed by the Court; hence, the present application.
2. The application is opposed by respondents No.1(a) and 1(b) by filing a reply, taking preliminary objections regarding the lack of maintainability, the application having been filed to cause unnecessary delay in the adjudication of the dispute, and no offer of settlement/compromise having ever been made to the respondents. The contents of the application were denied on merits. It was asserted that the applicant pleaded a legal proposition unknown to law, which is completely misconceived and based on a misinterpretation of the law, as well as the facts of the case. Hence, it was prayed that the application be dismissed with costs.
3. I have heard Mr. Imran Khan learned counsel for the applicant/ petitioner and Miss Pragati learned vice counsel representing the respondent/ complainant. Mr Imran Khan learned counsel for the applicant/petitioner, submitted that the applicant/petitioner has deposited the compensation amount, therefore, a direction should be issued to compound the offence. He relied upon the judgments in Raj Reddy Kallem versus State of Haryana, 2024:INSC:347 and Rajinder Kumar versus Pushpa Devi 2022:HHC:15780 in support of his submission.
4. Ms. Pragati, learned vice counsel representing the respondents submitted that the complaint cannot be compromised without the consent of the complainant. The complainant does not agree to the compromise between the parties; therefore, she prayed that the present application be dismissed. She relied upon the judgment of the Hon'ble Supreme Court in JIK Industries versus Amar Lal V Jumani, 2012 (2) civil Court Cases 128 in support of her submission.
5. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
6. It was laid down by the Hon'ble Supreme Court in JIK Industries Ltd. v. Amarlal V. Jumani, (2012) 3 SCC 255:
(2012) 2 SCC (Civ) 82: (2012) 2 SCC (Cri) 125: 2012 SCC OnLine SC 104 that the offence punishable under section 138 of NI Act cannot be compounded without the consent of the complainant. It was observed:
"82. A perusal of Section 320 makes it clear that the provisions contained in Section 320 and the various sub-sections are a code by itself relating to the compounding of offence. It provides for the various parameters procedures and guidelines in the matter of compounding. If this Court upholds the contention of the appellant that as a result of the incorporation of Section 147 in the NI Act, the entire gamut of procedure of Section 320 of the Code is made inapplicable to the compounding of an offence under the NI Act, in that case, the compounding of an offence under the NI Act will be left totally unguided or uncontrolled. Such an interpretation apart from being an absurd or unreasonable one will also be contrary to the provisions of Section 4(2) of the Code, which has been discussed above. There is no other statutory procedure for compounding of offence under the NI Act. Therefore, Section 147 of the NI Act must be reasonably construed to mean that as a result of the said section the offences under the NI Act are made compoundable, but the main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of the NI Act."
(emphasis supplied)
7. This judgment was considered in Raj Reddy Kallem v. The State of Haryana (2024) 8 SCC 588, and it was held that where both sides agree to compound the offence, there can be no difficulty in compounding the offence, however, if the complaint does consent to the compromise, the Court cannot compel him to give consent even if he has been adequately compensated. It was observed:-
"21. All the same, in this particular given case, even though the complainant has been duly compensated by the accused, yet the complainant does not agree to the compounding of the offence, the courts cannot compel the complainant to give "consent" for compounding of the matter. It is also true that mere repayment of the amount cannot mean that the appellant is absolved from the criminal liabilities under Section 138 of the NI Act."
8. It was held in A.S. Pharma (P) Ltd. v. Nayati Medical (P) Ltd., 2024 SCC OnLine SC 2539, that the Court could not quash the complaint under Section 138 of the NI Act in the exercise of its inherent power without the consent of the complainant based on the fact that the complainant has been adequately compensated. It was observed:-
"15. In the contextual situation, it is relevant to refer to a recent decision of this Court in Raj Reddy Kallem v. The State of Haryana [2024 INSC 347]. The said decision would reveal that this Court took note of earlier decisions of this Court in JIK Industries Ltd. case (supra) as also in the decision in Meters and Instruments Private Ltd. v. Kanchan Mehta [(2018) 1 SCC 560] and in un-ambiguous terms held that for compounding the offence under Section 138, N.I. Act, 'consent' of the complainant is required. In Kanchan Mehta's case (supra) even after referring to the decision in JIK Industries Ltd. Case (supra), this Court held that even in the absence of 'consent' the Court could close criminal proceedings against an accused in a case under Section 138, N.I. Act, if the accused had compensated the complainant. It was held therein thus:
--
18.3. Though compounding requires the consent of both parties, even in the absence of such consent, the court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.
16. But then, it is to be noted that later a five-judge Constitution Bench in Expeditious Trial of Cases Under Section 138, N.I. Act, 1881, In re, (2021) 16 SCC 116 held that observation in Kanchan Mehta's decision giving discretion to the trial Court "to close the proceedings and discharge the accused", by reading Section 258, Cr. P.C., which confers the power to stop proceeding in certain cases, is 'not a good law'. In Raj Reddy Kallem's case (supra), after referring to the above positions this Court further observed that even in Kanchan Mehta's case (supra) nowhere it was contemplated that 'compounding' could be done without the 'consent' of the parties. It is worthwhile to note at this juncture that in Raj Reddy Kallem's case, this Court drew a nice distinction between 'quashing of a case' and 'compounding an offence'. To drive that point home, this Court referred to the decision in JIK Industries Ltd.
case (supra), where this Court distinguished the quashing of a case from compounding as hereunder:--
"Quashing of a case is different from compounding. In quashing, the Court applies it but in compounding it is primarily based on the consent of the injured party. Therefore, the two cannot be equated."
17. It is in the aforesaid circumstances that we hold that the question whether the offence under Section 138, N.I. Act could be compounded by invoking the power under Section 147, N.I. Act, without consent of the complainant concerned, is no longer res integra. In short, the position is 'that an offence under Section 138, N.I. Act could be compounded under Section 147 thereof, only with the consent of the complainant concerned. In that view of the matter, the impugned judgment of the High Court wherein despite the absence of the consent of the appellant-complainant compounded the offence under Section 138, N.I. Act, on the ground that the appellant was equitably compensated, could not be sustained.
18. In the context of the issues involved another aspect of the matter also requires consideration. The decision in Raj Reddy Kallem's case (supra), also stands on a similar footing inasmuch as the complainant therein was duly compensated by the accused but the complainant did not agree for compounding the offence. After observing that, the Courts could not compel the complainant to give consent for compounding the offence under Section 138, N.I. Act, this Court in Raj Reddy Kallem's case (supra) took note of the peculiar factual situation obtained and invoked the power under Section 142 of the Constitution of India to quash the proceeding pending against the appellant-accused under Section 138, N.I. Act. True that in Raj Reddy Kallem's case, it was despite the non-consent of the complainant- respondent that the proceedings were quashed against the appellant therein, inter alia, taking note of the fact that the accused therein had compensated the complainant and furthermore deposited the additional amount, as has been ordered by this Court. We have no doubt in holding that merely because taking into account such aspects and circumstances this Court 'quashed' the proceedings by invocation of the power under Article 142 of the Constitution of India, cannot be a reason for 'compounding' an offence under Section 138, N.I. Act, invoking the power under Section 482, Cr. P.C. and the power under Section 147, N.I. Act, in the absence of consent of the complainant concerned in view of the decision referred hereinbefore. In this context, this is to be noted that the fact that this Court quashed the proceedings under Section 138, N.I. Act, invoking the power under Article 142 of the Constitution of India can be no reason at all for High Courts to pass an order quashing proceeding under Section 138, N.I. Act, on the similar lines as the power under Article 142 of the Constitution of India is available only to the Supreme Court of India. In this context it is relevant to refer to the three-judge Bench of this Court in State of Punjab v. Surinder Kumar [(1992) 1 SCC 489], this Court in paragraphs 6 to 8 therein held thus:--
6. A decision is available as a precedent only if it decides a question of law. The respondents are, therefore, not entitled to rely upon an order of this Court which directs a temporary employee to be regularised in his service without assigning reasons. It has to be presumed that for special grounds which must have been available to the temporary employees in those cases, they were entitled to the relief granted. Merely because grounds are not mentioned in a judgment of this Court, it cannot be understood to have been passed without an adequate legal basis therefor. On the question of the requirement to assign reasons for an order, a distinction has to be kept in mind between a court whose judgment is not subject to further appeal and other courts. One of the main reasons for disclosing and discussing the grounds in support of a judgment is to enable a higher court to examine the same in case of a challenge. It is, of course, desirable to assign reasons for every order or judgment, but the requirement is not imperative in the case of this Court. It is, therefore, futile to suggest that if this Court has issued an order which apparently seems to be similar to the impugned order, the High Court can also do so. There is still another reason why the High Court cannot be equated with this Court. The Constitution has, by Article 142, empowered the Supreme Court to make such orders as may be necessary "for doing complete justice in any case or matter pending before it", which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge.
7. It is true that the High Court is entitled to exercise its judicial discretion in deciding writ petitions or civil revision applications but this discretion has to be confined to declining to entertain petitions and refusing to grant relief, asked for by petitioners, on adequate considerations; and it does not permit the High Court to grant relief on such a consideration alone.
8. We, therefore, reject the argument addressed on behalf of the respondents that the High Court was entitled to pass any order which it thought fit in the interest of justice. Accordingly, we set aside the impugned order and allow the appeal, but in the circumstances without costs.
19. The upshot of the discussion is that the High Court had clearly fallen in error in invoking the power under Section 482, Cr. P.C., as also the power under Section 147, N.I. Act, to compound the offence under Section 138 of the N.I. Act qua the respondent-accused. Hence, the impugned judgment to the extent it compounded the offence under Section 138, N.I. Act invoking the inherent power under Section 482, Cr. P.C. and the power under Section 147, N.I. Act stands quashed and set aside." (Emphasis supplied).
9. Therefore, it is impermissible to quash the complaint as having been compromised without the consent of the complainant.
10. It was held in Raj Kumar (supra) that the High Court can quash the complaint as having been compounded where the complainant is duly compensated.
11. In the present case, the cheque was issued for an amount of ₹1,65,525/- on 17.03.2004. It was laid down by the Hon'ble Supreme Court in Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283: (2021) 3 SCC (Civ) 25:
(2021) 2 SCC (Cri) 555: 2021 SCC OnLine SC 75 that the Courts should uniformly levy a fine up to twice the cheque amount along with simple interest at the rate of 9% per annum. It was observed at page 291: -
19. As regards the claim of compensation raised on behalf of the respondent, we are conscious of the settled principles that the object of Chapter XVII of NIA is not only punitive but also compensatory and restitutive. The provisions of NIA envision a single window for criminal liability for the dishonour of a cheque as well as civil liability for the realisation of the cheque amount. It is also well settled that there needs to be a consistent approach towards awarding compensation and unless there exist special circumstances, the courts should uniformly levy fines up to twice the cheque amount along with simple interest @ 9% p.a. [R. Vijayan v. Baby, (2012) 1 SCC 260, para 20: (2012) 1 SCC (Civ) 79: (2012) 1 SCC (Cri) 520]"
12. 21 years and 17 days have elapsed since the date of issuance of the cheque, and simple interest @9% on the amount for 21 years comes to ₹3,12,842/-. The complainant had to pursue the litigation before the learned Trial Court and learned Appellate Court, and it had to engage a counsel before this Court. Thus, it is also entitled to be compensated for the litigation expenses incurred by it.
13. The applicant/accused has only deposited ₹50,000/- as compensation. This amount cannot be said to be adequate to compensate the complainant. Therefore, the Court cannot exercise the jurisdiction to quash the complaint, even if it existed, by taking recourse to its inherent power because the complainant has not been adequately compensated in the present case.
14. If the contention of the applicant is accepted, it would mean that the accused can drag the complainant to different Courts and, after finding that it has not succeeded, ask the Court to quash the proceedings because he had deposited the compensation amount ordered by the learned Trial Court. This can never be the law because it gives a premium to dishonesty, puts the complainant at a disadvantage and unnecessarily clogs the docket of the Courts. Therefore, the plea that the complaint is to be quashed on the deposit of the compensation amount cannot be accepted.
15. Consequently, the present application fails and the same is dismissed.
16. The application is disposed of in aforesaid terms Cr. Revision No. 137 of 2012 List the matter for the final hearing in due course.
(Rakesh Kainthla) Judge 3rd April, 2025 (Chander)