TMI Blog2021 (5) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... for compounding an offence, except where it is otherwise provided. Further, under Section 320 (5), (6), (7) and (9) of Cr.P.C., there is an embargo for compounding an offence once there is conviction. This is the view of the Supreme Court as well. The substantive law settled in the context of the offences under the IPC, is applicable to the offences triable under the N.I. Act and other special Legislations.Compounding of offences is permissible even at all appellate stages with permission or during the pendency of the revision under Section 401 of the Act. Therefore, not only the offences under the provisions of the Indian Penal Code, but the other offence(s) under the Special Act cannot be compounded, except under Section 320 Cr.P.C.Sections 138 to 142 of the Negotiable Instruments Act were inserted by Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, with the object of providing a speedy remedy apart from inculcating faith in the efficacy of Banking operations and credibility in business transactions relating to the Negotiable Instruments. Thus, it is an essential facet for the economic development of a country - the offence(s) which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 by the learned Judicial Magistrate (Fast Track Court), Omalur, (trial Court) for the offence under Section 138 of The Negotiable Instruments Act and sentenced to undergo one year simple imprisonment, together with compensation of ₹ 5,00,000/- payable to the complainant. (b) Assailing the said judgment of conviction, dated 11.04.2014, passed by the trial Court, the respondent (accused) filed Criminal Appeal No.56 of 2014 before the learned II Additional Sessions Judge, Salem. The Appellate Court allowed the appeal on 24.09.2014 by setting aside the judgment of conviction dated 11.04.2014 passed by the trial Court in C.C. No. 104 of 2013, thereby acquitting the respondent/accused. 3. Aggrieved by the judgment rendered by the Appellate Court, acquitting the accused, the complainant filed Criminal Appeal No.373 of 2015 before this High Court. The said Criminal Appeal was allowed by this Court on 09.04.2019. However, the sentence was modified from one year simple imprisonment to two months' simple imprisonment. This Court also confirmed the compensation amount of ₹ 5,00,000/- imposed on the respondent/accused by the trial Court. Thus, the Judgment dated 24.09. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Section 147 will prevail over Cr.P.C. in so far as compounding the offence . Requesting the office to post the matter for maintainability before Court. 7. This Crl.M.P.S.R. was posted before the learned Single Judge for maintainability . The learned Single Judge, after referring to various judgments relating to exercise of powers under Section 147 of the NI Act, as well as Section 482 Cr.P.C., by order dated 24.02.2020, held as follows:- 23. I may take the liberty to add further, change in circumstances referred in Mostt. Simrikhia case (Mostt. Simirikhia Vs. Smt.Dolley Mukherjee @ Smt.Chhabimukherjee @ another, (reported in AIR 1990 SC 1605 ( cited supra) ) , is not the change of attitude of the contesting party who come forward to compromise or settle the issue, after he has lost all the avenues provided under law. Right to Compound a case under Section 138 of Negotiable Instrument Act is available for the accused at all stages, but it does not mean that the said opportunity continue even after the case reaches its logical end. Change in circumstances should not be confused or substituted to the change of attitude of the parties. If any alteration in the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court in the case of Shakuntala Sawhney Vs. Kaushalya Sawhney , reported in 1980 (1) SCC 63, wherein it has been held as follows: 4. .. .. The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion. In the present case, Counsel today put in a joint statement (on April 2, 1979 an inchoate compromise purporting to be a full-fledged compromise had been put into Court by Counsel signed by both sides, but the joint statement of settlement put in today is in complete supersession of the earlier one), signed by the parties setting down the terms on which they have agreed. We consider it a success of the finer human spirit over its baser tendency for conflict. (ii) According to the learned Senior Counsel appearing for the petitioner/complainant, Chapter XVII of the Negotiable Instruments Act was inserted by the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988) by S.4 therein (with effect from 01.04.1989), dealing with of penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts , by which Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompounding of the offence(s) with two tables, each under sub-section (1) and (2). The compounding of cases may be entertained for two reasons: (i) compounding reduces the wastage of judicial time and makes it available for better use in disposing of the other cases, and (ii) compounding is encouraged to promote better relations and cordiality between parties and peace in the society and the locality. (v) In fact, the Supreme Court has allowed compounding of the offence(s) even in non-compounding cases, despite the offence(s) not being covered under the ambit of Section 320 Cr.P.C. In this regard, the learned Senior Counsel appearing for the petitioner/complainant relied on the below mentioned decisions:- (a) In the case of Kulwinder Singh and others vs. State of Punjab reported in 2007 (3) RCR (Criminal) 1052 = 2007 SCC Online P H 792, the Full Bench comprising five Judges of the Punjab and Haryana High Court, held that the High Court has power under Section 482 of Cr.P.C. to allow the compounding of non-compoundable offence(s) and quash the prosecution where the High Court felt that the same was required to prevent the abuse of process of any Court or to otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel appearing for the petitioner/complainant also relied on a judgment of the Apex Court in the case of Arun Singh Vs. State of Uttar Pradesh, reported in 2020 (3) SCC 736 , and useful reference can be made to the following observations made by the Supreme Court thereunder: 11. Though the offence in question are noncompoundable but the power of the High Court under Section 482 Cr.PC to quash the proceedings in such offences is well recognised by various decision of this court and the issue is no longer res integra. Reference may be made to the observations of three-Judge Bench of this Court in Gian Singh Vs. State of Punjab : 2012 (10) SCC 303 . '57. Quashing of offences or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of the offence. They are different and not interchangeable. Strictly speaking the power of compounding of offence given to a Court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of the inherent jurisdiction. In compounding of offence, power of a criminal court is circumscribed by the provisions contained in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Section 143 to 147 were inserted by the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial. .. . .. (viii) Further, reliance was also placed on the decision of the Supreme Court in the case of Vinayak Devanna Nayak Vs. Ryot Seva Sahakari Bank Limited, reported in 2008 (2) SCC 305, wherein it was held as follows:- 16. Section 138 of the Act was inserted by the Banking, Public Financial Institutions and Negotiable Instrument Law (Amendment) Act, 1988 (ACT 66 of 1988) to regulate financial promises in growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters. The incorporation of the provision is designed to safeguard the faith of the creditor in the drawer of the cheque, which is essential to the economic life of a developing country like India. The provision has been introduced with a vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n par with the other criminal offence(s). In such offences, the parties are always permitted to enter into a compromise so as to bring an end to the long dispute. To fortify this submission, the learned Senior Counsel appearing for the petitioner/complainant relied on a judgment of the Apex Court in the case of Damodar S.Prabhu Vs. Sayed Babalal.H, reported in 2010 (5) SCC 663 = AIR 2010 SC 1107, wherein the Supreme Court framed guidelines with respect to granting permission for compounding of the offence(s) at various stages and the relevant portion of the said judgment reads as follows: (SCC para 21): 21. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r with the criminal offence(s). In such offence(s), the parties are permitted to enter into compromise to bring an end to the dispute. Hence, the compounding of offence under Section 138 of the N.I. Act, through Section 147 of the N.I. Act, can be given effect to, even at a later stage of the proceedings, subject to the parties agreeing to an appropriate compensation. (xiii) The learned Senior Counsel, by inviting the attention of this Court to the judgment passed in Crl.R.C.No.1096 of 2013, dated 31.01.2020 (Sathish Kumar Vs. Vidhyasagar), reported in CDJ 2020 MHC 2764, submitted that a learned Single Judge of this Court dismissed the Criminal Revision Case (Crl.R.C) filed by the accused in that case and thereby, confirmed the conviction imposed by the trial Court, which was also confirmed by the appellate Court in the appeal at the first instance, but permitted the parties to compound the offence under Section 138 of the N.I. Act, by approaching the trial court/Magistrate under Section 147 of the N.I. Act, despite having already exercised the revisional jurisdiction of this Court. The relevant portion of the said order dated 31.01.2020, reads thus:- 14. ..... In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner has prayed to permit him to compound the offence and acquit him by setting aside the conviction recorded in Criminal Case No. 726 of 2003 under Section 138 of The Negotiable Instruments Act, by learned Judicial Magistrate, Karur is allowed. The petitioner is permitted to compound the offence. (xvi) Apart from the above decisions, the learned Senior Counsel appearing for the petitioner/complainant produced a catena of orders passed by the various High Courts to fortify his submission that the offence under Section 138 of the N.I. Act can be compounded at any stage. (xvii) With regard to the issue raised in this petition as to whether Section 362 of Cr.P.C. is a bar to invoke Section 482 Cr.P.C., the learned Senior Counsel appearing for the petitioner/complainant, by relying upon a judgment of the Supreme Court in the case of New India Assurance Company Limited Vs. Krishna Kumar Pandey, reported in 2019 SCC Online SC 1786, in Crl.A.No.1852 of 2019 (arising out of S.L.P.(Crl).No.8499 of 2014), dated 06.12.2019, submitted that in paragraph 11 of the said judgment, it has been held as 11. ..... .. ... Section 362 of the Code is expressly subjected to what is otherwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearing for the petitioner/complainant that the Government of India, Ministry of Finance, Department of Financial Services issued a proposal on 08.06.2020 inviting public views with regard to decriminalisation of certain offences, which includes Section 138 of the N.I. Act. Further, the Annexure of the said proposal at page No.15 under Entry No.18 specifies Section 138 of the Act to be considered for decriminalisation. Thus, the intention of the Legislature itself is to consider the offence under Section 138 of the N.I. Act as a less severe offence, ideally resolved by the parties by entering into compromise. (xxi) The learned Senior Counsel appearing for the petitioner/complainant also submitted that the intention of the parties to compound the offence under Section 147 of the N.I. Act constitutes a substantial change in circumstances. In this regard, the learned Senior Counsel appearing for the petitioner/complainant invited the attention of this Court to the definition of circumstances referred to in Black's Law Dictionary , which reads as follows:- Circumstances are minor facts, Pulliam v. State 196 Ga 782, 28 S.E. 2nd 139, 147; related or accessory facts, occu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner/complainant also relied on a decision of the Apex Court reported in AIR 2009 SC 1863 = 2009 (13) SCC 443 (State of Andhra Pradesh Vs. Aravapally Venkanna and others) , wherein, it has been held as follows: 4. (As observed in State of A.P. Vs. Goloconda Linga Swamy (2004 (6) SCC 522, pp.526-29 : 2004 SCC (Cri) 1805, paras 5-8): 5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. .. .. .. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent such abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application for compounding an offence would amount to setting aside the judgment passed on merits . While so, it is not permissible to entertain a petition for compounding the offence in exercise of the powers conferred under Section 482 Cr.P.C. after pronouncement of the judgment on merits . (ii) With regard to the submission made by the learned Senior counsel for the petitioner that the Negotiable Instruments Act is a special enactment and it will over-ride the provisions conferred under the Cr.P.C., the learned Advocate General invited the attention of this Court to Section 4 Cr.P.C. and submitted that it deals with the offences under the Indian Penal Code (IPC) and other laws. Section 5 Cr.P.C. deals with saving clause , which specifically states that, Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force . According to the learned Advocate General, the provisions in the Cr.P.C. will prevail. Further, according to the learned Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of the lower court and the appellate Court cannot issue further directions beyond the scope of the appeal. Though the cases may be compounded at any time before a sentence of imprisonment is pronounced, even when a judgment is being written, the Court may hold that, after pronouncement of the judgment, there can be no compounding. However, compounding of cases/offence(s) concerning Negotiable Instruments Act, are governed by Section 147 of the Negotiable Instruments Act and the scheme contemplated under Section 320 Cr.P.C. will not be applicable in the strict sense, but the principles have to be applied for compounding. Thus, it is the submission of the learned Advocate General that in exercise of power under Section 482 Cr.P.C., the petition for compounding of the offence(s) need not be entertained after the verdict has been delivered in the criminal case. 12. Having heard the learned Senior Counsel appearing for the petitioner/complainant and the learned Advocate General, who assisted this Court in settling this reference, we proceed to decide this case. We have gone through the various decisions cited before us and the order under reference. 13. No doubt, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith a non-obstante clause, nevertheless, substantive law on the subject under Section 320 of the Cr.P.C. is applicable. Section 320 (5), (6). (7) and (9) reads as under: Section 320 Cr.P.C : Compounding of offences:-- .. .. . (5) When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard. (6) A High Court or Court of Sessions 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. (7) No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence. .. .. .. (9) No offence shall be compounded except as provided by this section. 17. Compounding of offences is permissible even at all appellate stages with permission or during the pendency of the revision under Section 401 of the Act. Therefore, not only the offences unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a Non-Obstante Clause and it provides for compounding of all the offence(s) covered under the Negotiable Instruments Act, the compounding of offence(s) thereunder should be consistent with the principles laid down under Section 320 Cr.P.C. Section 320 (5), (6), (7) and (9) of Cr.P.C. specifically bars the compounding of offence in certain circumstances. The provisions under Section 320 Cr.P.C. are pre-requisites for filing an application for compounding in a proceeding pending before the High Court. 20. It may be useful to refer to paragraph 12 in the decision of the Supreme Court in Damodar S. Prabhu Vs. Sayed Babalal H , reported in 2010 (5) SCC 663 , wherein, the Court held as follows:- 12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 CrPC which states that No offence shall be compounded except as provided by this section . A bare reading of this provision would lead us to the inference that offences punishable under laws other than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut must not sell mercy. This offence of compounding is committed by the bare act of agreement; even though the compounder afterwards breaks his agreement and prosecutes the criminal. And inasmuch as the law permits not merely the person injured by a crime, but also all other members of the community, to prosecute, it is criminal for anyone to make such a composition; even though he suffered no injury and indeed has no concern with the crime. 82. A perusal of Section 320 makes it clear that the provisions contained in Section 320 and the various sub-sections is a code by itself relating to compounding of offence. It provides for the various parameters and procedures and guidelines in the matter of compounding. If this Court upholds the contention of the appellant that as a result of incorporation of Section 147 in the NI Act, the entire gamut of procedure of Section 320 of the Code are made inapplicable to compounding of an offence under the NI Act, in that case the compounding of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court for reviewing or recalling a judgment, which was already passed by this Court by confirming the conviction and sentence imposed on the respondent/accused, by the trial Court. Such power under Section 482 Cr.P.C. are boundless. At the same time, exercise of power under Section 482 Cr.P.C. is subject to restrictions imposed under Section 362 Cr.P.C. 24. Applying the above principles to the case on hand, the respondent in this case pleaded not guilty before the trial court, appellate Court at the first instance, as well as this Court in the appeal against acquittal, but such a plea was over-turned and he was convicted for having committed the offence under Section 138 of the Negotiable Instruments Act. While so, the present petition seeking to accept the compromise entered into between the parties, is nothing short of an abuse of process of law. 25. Compounding is permissible to bring peace among the parties. It can be permitted at any stage of the proceeding. A curtain has to be drawn as to the stage where the compounding can be permitted. The learned Senior Counsel appearing for the petitioner/complainant had cited the judgment of this Court delivered in Crl.R.C.No.109 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upholding the conviction imposed against the respondent, which would shake the confidence reposed by the litigants in the Court of law. It will also embolden the persons like the respondent/accused to resort to an out of Court settlement after he was found guilty by the Court of law. 26. Finally, we wish to observe that the Supreme Court, in number of cases, interpreted Section 362 of Cr.P.C. and held that, when once the High Court confirms the conviction, thereafter, the High Court has no jurisdiction to entertain to compound the offence(s) and in such case, proper course is to file Special Leave Petition before the Supreme Court, to get appropriate relief as the case may be. 27. Therefore, we answer the issue that when once a Criminal Case registered under Section 138 of the N.I. Act, had handed down the conviction either in the Appeal or in the Revision by the High Court, the question of compounding of the offence(s) thereafter under Section 147 of the N.I. Act by invoking Section 482 Cr.P.C. is not permissible, in view of the embargo envisaged under Section 362 Cr.P.C. The inherent powers of the High Court under Section 482 Cr.P.C., cannot be used to defeat the specific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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