Andhra HC (Pre-Telangana)
M. Mohan Reddy vs Jairaj D. Bhale Rao And Anr. on 15 November, 1995
Equivalent citations: 1995(3)ALT630, 1995(2)ALT(CRI)716
Author: Y.V. Narayana
Bench: Y.V. Narayana
JUDGMENT Y.V. Narayana, J.
1. This petition is filed by the complainant in C.C. No. 284 of 1993 on the file of the learned Fifth Metropolitan Magistrate, Hyderabad, seeking permission of this court to permit him (the petitioner) to compound the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (XXVI of 1881), and allow Criminal Appeal No. 258 of 1995 which is filed against C.C. No. 284 of 1993 and which is pending.
2. The brief facts of the case are as under :
The petitioner-complainant advanced a sum of Rs. 11,60,000 on February 3, 1992, and another sum of Rs. 10,00,000 on March 26, 1992, to the first respondent herein who is the accused in the case. The first respondent issued five cheques drawn on Canara Bank, Somajiguda, Hyderabad, to the petitioner herein towards payment of the amounts advanced to him. The cheques were dishonoured as the "funds are insufficient". Therefore, the petitioner filed the complaint. The learned Magistrate, after full trial, found the first respondent guilty of the offence punishable under section 138 of the Negotiable Instruments Act, 1881, convicted him and sentenced him to suffer rigorous imprisonment for a period of one year and also to pay a fine of Rs. 5,000 in default to suffer simple imprisonment for a period of two months. Aggrieved by the said judgment, the first respondent carried the matter in appeal, Criminal Appeal No. 258 of 1995 on the file of the learned Fourth Additional Metropolitan Sessions Judge, Hyderabad, which is still pending. Subsequent to the filing of Criminal Appeal No. 258 of 1995, the first respondent paid the entire amount due to the petitioner, who acknowledged the receipt of the same. Therefore, the petitioner filed the present petition seeking permission to permit him to compound the said offence. Along with the petition both the petitioner and the first respondent filed separate affidavits. In the affidavit filed by the petitioner, who is the complainant in the case, he stated that he received the full amounts relating to the dishonoured cheques issued by the first respondent; that they entered into a compromise and that he has no objection to allow the appeal preferred by the first respondent.
3. The point that arises for consideration in this petition is : whether the petitioner can be permitted to compound the offence punishable under section 138 of the Negotiable Instruments Act, with the first respondent ?
4. Compounding of offences is provided in section 345 of the Code of Criminal Procedure Act (V of 1898). The old Criminal Procedure Code was repealed by the new Criminal Procedure Code Act (II of 1974). Section 320 of the new Criminal Procedure Code dealt with the compounding of offences mentioned therein. The new Criminal Procedure Code dealt with compounding of offences punishable under the Indian Penal Code only, but not dealt with the offences under other penal laws. The Negotiable Instruments Act is silent about the compounding of the offence punishable under section 138 of the said Act. In these circumstances, let us see the legal position.
5. Sri K.V. Satyanarayana, learned counsel for the first respondent, has brought to my notice two decisions of this court-one by a Division Bench and another by a single judge, to which a mention is made hereunder.
6. The Division Bench of this court in Daggupati Jayalakshmi v. State [1993] 2 ALT (Crl.) 159 considered the question very elaborately relating to granting of permission to compound the offence punishable under section 498A of the Indian Penal Code, which is a non-compoundable offence according to section 320 of the Criminal Procedure Code (new) and held that permission may be granted for compounding the offence under section 498A of the Indian Penal Code, as the compromise entered into by the parties is for the benefit of their future life and also for the benefit of their children.
7. B. Sudershan Reddy J., in the decision reported in Annamdevula Srinivasa Rao v. State of A.P. [1995] 3 ALD 349, considered the issue regarding granting of permission to compound the offences punishable under sections 498A and 307 of the Indian Penal Code and also the offence punishable under Section 138 of the Negotiable Instruments Act. He discussed the matter very elaborately and held that the decision of the Division Bench in Daggupati Jayalakshmi v. State [1993] 2 ALT (Crl.) 159, must be regarded as given per incuriam and the High Court has no power and jurisdiction to direct the subordinate criminal courts to permit the parties to compound the offences which are otherwise non-compoundable in exercise of the inherent jurisdiction under section 482 of the Criminal Procedure Code.
8. Mr. K.V. Satyanarayana, learned counsel appearing for respondent No. 1, brought to my notice about the intention of the Legislature in deleting the column in the old Criminal Procedure Code, regarding compoundability of offences against other laws.
9. In Scheduled II to the old Criminal Procedure Code, there is a mention about the offences against other laws, i.e. offences other than the Indian Penal Code. In that table there is a column relating to compounding of offences. According to the old Criminal Procedure Code all the offences, irrespective of the length of sentence, against other laws are not compoundable. So, according to the old Criminal Procedure Code, the offences punishable under section 138 of the Negotiable Instruments Act is a non-compoundable offences. In the new Criminal Procedure Code in the First Schedule classification of offences against other laws was tabulated. In that table whether the offence against other laws is compoundable or not is not specified. That means the column in the old Criminal Procedure Code mentioning that all the offences against other laws are not compoundable, is omitted in the new Code. By that we can draw the inference that the prohibition of compounding offences against other laws is taken away by the new Criminal Procedure Code. Thus, according to the new Criminal Procedure Code, since there is no specific mention about the compounding of offences against other laws; and since section 320(9) of the Criminal Procedure Code (new) says that "no offence shall be compounded except as provided by this section", i.e., the prohibition is regarding compounding of offences mentioned in that section only; since the new Criminal Procedure Code is silent regarding the compounding of offences against other laws; especially since the column in the Second Schedule to the old Criminal Procedure Code stating the offences against the other laws are not compoundable, is deleted in the new Criminal Procedure Code, it can be safely inferred that the Legislature, while drafting the new Criminal Procedure Code, intended to permit the offences against other laws to be compounded.
10. The provision of section 320 of the Criminal Procedure Code (new) permitting an agreement between the injured person and the offender to terminate the criminal proceedings against the offender cannot be viewed as unlawful or as opposed to public policy. Permitting the parties to compound the offence does not mean that an offence has not been committed; but only means that it has been committed but the victim is willing either to forgive it or to accept some form of solatium as sufficient compensation for what he has suffered. The Law Commission in its 41st report, regarding section 345 of the Criminal Procedure Code (old), has observed thus :
"The broad principle that forms the basis of the present scheme is that where the offence is essentially of a private nature and relatively not serious, it is compoundable. It is, in our opinion, better to have clear and specific provisions such as those contained in section 345 than a general rule which is likely to lead to different interpretations. A rule to the effect that an offence will be compoundable if the maximum punishment provided for it is not more than three years' imprisonment, will, no doubt, be definite but will not, in our opinion, be suitable".
11. Thus, the policy of the Legislature adopted in section 320 of the Criminal Procedure Code is that in the case of certain minor offences, where the interests of the public are not vitally affected, the complainant should be permitted to come to terms with the party against whom he complains. The principle seems to be that wrongs of certain classes which affect mainly a person in his individual capacity or character may be sufficiently redressed by compensation. Where a case has once been brought to the court and the parties have adjusted the matter between themselves lawfully, it cannot be said that they are hushing up the matter.
12. In view of the above, I find myself unable to agree with the finding of my learned brother, Sudarshan Reddy J., that the parties cannot be permitted to compound the offence punishable under section 138 of the Negotiable Instruments Act; mainly on the ground that the column regarding compounding of offences in the Second Schedule in the old Criminal Procedure Code is intentionally taken away by the legislation and section 320 of the Criminal Procedure Code (new) deals with offences punishable under the Indian Penal Code only and does not lay any bar or prohibition regarding compounding of offences against the other laws.
13. In view of the above, I feel it just and proper to permit the petitioner to compound the offence punishable under section 138 of the Negotiable Instruments Act with the first respondent-accused and allow Criminal Appeal No. 258 of 1995. Accordingly, this criminal miscellaneous petition is allowed; the petitioner herein is permitted to compound the offence punishable under section 138 of the Negotiable Instruments Act with the first respondent-accused; Criminal Appeal No. 258 of 1995 on the file of the Fourth Metropolitan Magistrate is allowed and the first respondent accused is acquitted of the charge, setting aside the conviction and sentence passed by the learned Fifth Metropolitan Magistrate, Hyderabad, in C.C. No. 284 of 1993.