Criminal
P.C. 1973 - Sections 397, 401 and 482 - Negotiable Instruments Act,
1881 - Sections
138 & 147 - Offences to be compoundable - the Court
after being satisfied that the cheque amount with the assessed cost and
interest has been paid, can close the proceedings even in absence of the
complainant.
Since, the petitioner has paid the entire compensation amount,
therefore, quashing of the complaint initiated at the instance of
complainant/respondent would be a step towards securing the ends of justice and
to prevent abuse of process of the Court, especially, when the petitioner is
facing pangs and suffered agony of protracted trial and thereafter appeal/revision
for the last more than four years and has paid the entire compensation amount. [Para
10]
Facts of the Case
The petitioner has not only paid the entire compensation amount but also paid 15% of the cheque amount i.e. Rs. 30,000/- with the H. P. State Legal Services Authority and prays that the present petition be disposed of as having been compounded. However, the moot question is whether a matter of such kind can be compounded. This court is not powerless in such situation and adequate powers have been conferred upon it not only under sections 397 read with Section 401 or Section 482 Cr.P.C. (hereinafter referred to as the Code) but also under Section 147 of the Act for accepting the settlement entered into between the parties and to quash the proceedings arising out of the proceedings, which have consequently culminated into a settlement. This power has been conferred to subserve the ends of justice or/and to prevent abuse of the process of any Court. Though, such power is required to be exercised with circumspection and in cases which do not involve heinous and serious offence of mental depravity or offences like murder, rape, dacoity etc.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Coram The
Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Cr. R. No. 284 of 2018 Date of decision: 07.12. 2018.
Sh. Digvijay Chandra v. Versus Sh. Ambrish Vijay Rohal
For the Petitioner : Mr. T. K.
Verma & Sunil Thakur, Advocates.
For the Respondent : Mr. M. L.
Sharma, Advocate.
Looking to the nature of order, I propose to pass, it is not at
all necessary to delve into the facts in detail. Suffice it to state that the
complainant/respondent instituted a complaint under Section 138 of the
Negotiable Instruments Act (for short ‘Act’) against the petitioner on the
allegations that the cheque of Rs. 2,00,000/- handed over by the petitioner to
the respondent in order to discharge his liability had been dishonoured. The complaint
was decided in favour of the respondent by the learned trial Magistrate and the
petitioner was sentenced to undergo a simple imprisonment of one month and also
directed to pay a compensation of Rs. 2,10,000/-.
2.
Aggrieved by the judgment of conviction and sentence passed by the learned
trial Magistrate on 14/31.03.2017, though the petitioner preferred an appeal
before the learned Sessions Judge (F), Shimla, H.P., however, the same came to
be dismissed vide judgment dated 01.05.2018, constraining the petitioner to
file the instant revision petition.
3. Today when
the case was taken up, the learned counsel for the petitioner has produced
before me a photocopy of the Bank Draft drawn in favour of JMIC (VII), Shimla
for a sum of Rs. 1,57,500/-. It is also not in dispute that earlier to this an amount
of Rs.52,500/- has already been deposited with the trial Court and in addition
thereto a sum of Rs.30,000/- stands deposited with the H. P. State Legal
Services Authority, as is evident from Annexure A-1 annexed with the petition.
4. Thus,
in all, the petitioner has not only paid the entire compensation amount but
also paid 15% of the cheque amount i.e. Rs. 30,000/- with the H. P. State Legal
Services Authority and prays that the present petition be disposed of as having
been compounded.
5. However,
the moot question is whether a matter of such kind can be compounded. This
court is not powerless in such situation and adequate powers have been
conferred upon it not only under sections 397 read with Section 401 or Section
482 Cr.P.C. (hereinafter referred to as the Code) but also under Section 147 of
the Act for accepting the settlement entered into between the parties and to
quash the proceedings arising out of the proceedings, which have consequently
culminated into a settlement. This power has been conferred to subserve the
ends of justice or/and to prevent abuse of the process of any Court. Though,
such power is required to be exercised with circumspection and in cases which
do not involve heinous and serious offence of mental depravity or offences like
murder, rape, dacoity etc.
6. This
question otherwise need not detain this Court any longer in view of the three
Judges Bench decision of the Hon’ble Supreme Court in Parbatbhai Aahir @
Parbatbhai and others versus State of Gujarat and another, Criminal Appeal No.
1723 of 2017, decided
on 4th October, 2017, wherein after taking into consideration the entire
law on the subject, the Hon’ble Supreme Court has laid down the following broad
principles for exercise of powers under Section 482 of the Code which read
thus:-
“(i) Section 482 preserves the inherent powers
of the High Court to prevent an abuse of the process of any court or to secure
the ends of justice. The provision does not confer new powers. It only recognises
and preserves powers which inhere in the High Court;
(ii) The invocation of the
jurisdiction of the High Court to quash a First Information Report or a
criminal proceeding on the ground that a settlement has been arrived at between
the offender and the victim is not the same as the invocation of jurisdiction
for the purpose of compounding an offence. While compounding an offence, the
power of the court is governed by the provisions of Section 320 of the Code of Criminal
Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is noncompoundable.
(iii) In forming an opinion
whether a criminal proceeding or complaint should be quashed in exercise of its
jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would
justify the exercise of the inherent power;
(iv) While the inherent power
of the High Court has a wide ambit and plenitude it has to be exercised; (i) to
secure the ends of justice or (ii) to prevent an abuse of the process of any
court;
(v) The decision as to whether
a complaint or First Information Report should be quashed on the ground that
the offender and victim have settled the dispute, revolves ultimately on the
facts and circumstances of each case and no exhaustive elaboration of principles
can be formulated;
(vi) In the exercise of the
power under Section 482 and while dealing
with a plea that the dispute has been settled, the High Court must have due
regard to the nature and gravity of the offence. Heinous and serious offences
involving mental depravity or offences such as murder, rape and dacoity cannot appropriately
be quashed though the victim or the family of the victim have settled the
dispute. Such offences are, truly speaking, not private in nature but have a
serious impact upon society. The decision to continue with the trial in such
cases is founded on the overriding element of public interest in punishing
persons for serious offences;
(vii) As distinguished from
serious offences, there may be criminal cases which have an overwhelming or
predominant element of a civil dispute. They stand on a distinct footing in so
far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases
involving offences which arise from commercial, financial, mercantile,
partnership or similar transactions with an essentially civil flavour may in
appropriate situations fall for quashing where parties have settled the
dispute;
(ix) In such a case, the High
Court may quash the criminal proceeding if in view of the compromise between
the disputants, the possibility of a conviction is remote and the continuation
of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception
to the principle set out in propositions (viii) and (ix) above. Economic
offences involving the financial and economic well-being of the state have
implications which lie beyond the domain of a mere dispute between private disputants.
The High Court would be justified in declining to quash where the offender is
involved in an activity akin to a financial or economic fraud or misdemeanour.
The consequences of the act complained of upon the financial or economic system
will weigh in the balance.”
7. Apart
from the above, it shall be apposite to make note of another recent judgment of
the Hon’ble Supreme Court in Meters and Instruments Private Limited and another versus Kanchan Mehta (2018) 1
SCC 560 wherein
after taking into consideration the object of introducing Section 138 and other
provisions of Chapter XVII in the Act in the year 1988, it was observed as
under:-
“18. From the
above discussion following aspects emerge:
18.1. Offence under Section 138 of the Act is primarily a
civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof
is “preponderance of probabilities”. The same has to be normally tried
summarily as per provisions of summary trial under the Cr.P.C . but with such variation as
may be appropriate to proceedings under Chapter XVII of the Act. Thus read,
principle of Section 258 Cr.P.C. will
apply and the Court can close the proceedings and discharge the accused on
satisfaction that the cheque amount with assessed costs and interest is paid
and if there is no reason to proceed with the punitive aspect.
18.2. The object of the
provision being primarily compensatory, punitive element being mainly with the
object of enforcing the compensatory element, compounding at the initial stage
has to be encouraged but is not debarred at later stage subject to appropriate
compensation as may be found acceptable to the parties or the Court.
18.3. Though compounding
requires consent of both parties, even in 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.
18.4. Procedure for trial of
cases under Chapter XVII of the Act has normally to be summary. The discretion
of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as
sentence of more than one year may have to be passed, is to be exercised after considering
the further fact that apart from the sentence of imprisonment, the Court has
jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under
Section 64 IPC and with
further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year
may not be required in all cases.
18.5. Since evidence of the
complaint can be given on affidavit, subject to the Court summoning the person
giving affidavit and examining him and the bank’s slip being prima facie
evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record
any further preliminary evidence. Such affidavit evidence can be read as
evidence at all stages of trial or other proceedings. The manner of examination
of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is
to follow summary procedure except where exercise of power under second proviso
to Section 143 becomes necessary, where sentence of one year may have to be
awarded and compensation under Section 357(3) is considered inadequate, having
regard to the amount of the cheque, the financial capacity and the conduct of
the accused or any other circumstances.”
8. It is
evident from the aforesaid judgment that this Court after being satisfied that
the cheque amount with the assessed cost and interest has been paid, can close
the proceedings even in absence of the complainant.
9. The
issue is no longer res integra in
view of the very recent judgment of the Hon’ble Supreme Court in Bhangu Trading Co. and
another versus Surjit Singh (dead) through LRs, Criminal Appeal Nos. 808 and 809
of 2018 decided on 02.07.2018 and in terms of the subsequent judgment in N.P. Murugesan versus C. Krishnamurthy,
Criminal Appeal No.818 of 2018, decided on 04.07.2018, wherein it was observed as under:-
“Leave granted.
2. The appellant is before this
Court aggrieved by the conviction and sentence under Section 138 of the Negotiable Instruments
Act, 1881.
3. Today, when the matter came up
before this Court, we are informed that the cheque amount has already been paid
and it is acknowledged by the respondent.
4. In the peculiar facts and
circumstances of this case, we are of the view that for doing complete justice
the whole litigation should be given a quietus, subject to appropriate terms.
5. Accordingly, we set aside the
conviction and sentence imposed on the appellant and allow the appeal….”
10.
Since, the petitioner has paid the entire compensation amount, therefore,
quashing of the complaint initiated at the instance of complainant/respondent
would be a step towards securing the ends of justice and to prevent abuse of process
of the Court, especially, when the petitioner is facing pangs and suffered
agony of protracted trial and thereafter appeal/revision for the last more than
four years and has paid the entire compensation amount.
11. Thus, taking holistic view of the matter and further taking into
consideration all the attending facts and circumstances as also the law laid
down by the Hon’ble Supreme Court in Parbatbhai Aahir, Kanchan Mehta, Bhangu Trading Co., and N.P.
Murugesan cases
(supra), I find this to be a fit case
to exercise the powers not only under Sections 397, 401 and Section 482 of the
Code, but even under Section 147 of the Act.
12. In view of the above discussion, it is ordered that the impugned
substantive sentence of simple imprisonment imposed in this case shall stand
modified and substituted in lieu of the compensation amount of Rs.2,10,000/-
that stands already paid by the petitioner.
13. The amount deposited before the learned trial Court is ordered to
be released in favour of the respondent on furnishing his bank account.
14. With these observations, the revision petition stands disposed of,
so also the pending application, if any.
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