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KOSHY,J.

Whether an offence under Section 138 of the Negotiable Instruments Act can be compounded after the confirmation of the conviction passed by the Magistrate Court, by the appellate court and High Court in revision ? Whether an order passed by the High Court in a criminal revision petition confirming the conviction can be nullified by the High Court in a petition filed under Section 482 of Cr.P.C. noticing subsequent compromise of the case by the contesting parties ? What is the effect of the non obstante clause 'notwithstanding anything contained in the Code of Criminal Procedure (Cr.P.C)' in Section 147 of the N.I.Act ? These are the main questions to be considered in this case. In Sabu George v. Home Secretary (2007 (1) KLT 982), it was held by the learned Single Judge of this Court that offence under Section 138 can be compounded even after confirmation of the conviction by the High Court in revision and considering the subsequent facts of compromise, necessary relief can be given in a petition under Section 482 of the Cr.P.C. by this Court. Another learned Single Judge of this Court expressed doubt about the correctness of the above decision and thus referred this matter to the Division Bench.

8. For answering the reference and for deciding the matter, we are bound to consider several points.

(1) Whether before insertion of Section 147 of the N.I.Act, offence under Section 138 was compoundable ? It was pointed out by the petitioner that in M.Mohan Reddy v. Jairaj D. Bhale Rao and others (1996 Crl.L.J 1010) (Andhra Pradesh High Court) and Naimesh P. Pandya v. State (1998 Crl.L.J. 4424) (Gujarat High Court) courts allowed compounding of the offence under Section 138 of N.I.Act before insertion of Section 147. The Karnataka High Court in M.Rangaswamaiah v. R.Shettappa (2002 Crl.L.J. 4792) held that in the absence of any prohibition in the Act or Cr.P.C., offence under Section 138 can be compounded. Court relied on the decision of the Apex Court in O.P.Dholakia v. State of Haryana ((2000) 1 SCC 762). But in that case it was not held by the Apex Court that offence under Section 138 is compoundable although the court accepted the compromise on the facts of the case by exercising powers of the Supreme Court, without creating a precedent. The above judgment is only a short judgment and concluding paragraph is as follows:

offence, any offence under Special Act also cannot be compounded except as specifically provided under Section 320. Hence before insertion of Section 147 of N.I.Act, offence under Section 138 was not compoundable. A Division Bench of this Court in Antony v. Sherafudin (1995 (2) KLT 386) considered the provisions of N.I.Act and Section 320 of Cr.P.C. observed as follows:

"As there is specific provision in the Criminal Procedure Code for compounding offences enumerated in the tables under Ss.320 (1) and (2) and as sub-section (9) makes the position crystal clear that no offence shall be compounded except as provided in the Section, any offence coming under a special enactment cannot be compounded under the provisions of the Code. In a case where a special enactment provides for compounding of offences it can certainly be done, if not, it cannot be done. S.138 of the Negotiable Instruments Act does not provide for compounding of the offence. So long as there is no specific provision for compounding of the offence under S.138 of the Negotiable Instruments Act the offence cannot be compounded by invoking S.320 Cr.P.C."

22. In K.Kandasamy and another v.

K.P.M.V.P.Chandrasekharan (2005 AIR SCW 2460) Honourable Supreme Court in a pending matter accepted compounding of the offence after confirmation of the same by revisional court. In Sailesh Shyam Parsekar v. Baban Alias Vishwanath S. Godge and another (2005 AIR SCW 3358), Apex Court allowed the compounding of offence under Section 138 of the N.I.Act when first application was filed in the appeal and conviction and sentence passed by the revisional court was set aside. This order will not prevent the petitioners to approach the Honourable Supreme Court in appropriate proceedings if the offence is compounded, if so advised. Operative part of the revisional order in this case is as follows: