TMI Blog2004 (4) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of 2000 dated 4-10-2002 and the same orders confirmed by the learned Additional Sessions Judge (Fast Track Court No. 2), Vadodra in Appeal No. 16 of 2002 below Exh. 11 dated 14-11-2003 pending hearing and final disposal of this Special Criminal Application; (c) Your Lordships may be pleased to quash and set aside the orders passed by the learned Magistrate in Criminal Case No. 3616 of 2000 dated 4-10-2002 and the orders passed by the learned Sessions Judge (Fast Track Court No. 2), Vadodara dated 14-11-2003 below Exh. 11 and Your Lordships may be pleased to give benefit under Section 147 of the Negotiable Instruments Act by compounding the offence. 4. The accused had earlier filed one Criminal Revision Application being Criminal Revision Application No. 606 of 2003 challenging the legality and validity of both the orders mentioned in the relief clause referred to hereinabove but the same came to be dismissed by this Court (Coram : D. H. Waghela, J.), in limine on the date of admission i.e. 12-12-2003. When the revision application was listed for admission hearing, the Court was requested to postpone the admission hearing and according to the learned Counsel appearing for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary power and jurisdiction of this Court under Article 226 of the Constitution and Section 482 of the Cr.P.C. ought to be exercised to relieve the petitioner of the sentence by way of compounding of offence adopting an analogy of the provisions of Section 320 of the Cr.P.C. even though no proceedings are pending. Sub-section (9) of Section 320 of Cr.P.C. clearly prohibits compounding of offence except as provided by that Section. These circumstances, the petition requires consideration. 6(i). On resistance of learned P.P. as to the maintainability of the petition under Section 482 of Cr.P.C. in the matters where the High Court has dismissed the revision application on merits, the original complainant approached the Court by filing revision application being Cri. Revision Application No. 66 of 2004 challenging sustainability of both the orders i.e. first order of conviction and sentence and confirmed in appeal by the learned Addl. Sessions Judge under Section 397 read with Section 401 Cr.P.C. 6(ii). Said revision application came to be listed for admission hearing on 7-2-2004 and it was decided to hear the revision application along with the above mentioned Special Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used persons. In absence of such persons as co-accused, no complaint could sustain. 8(ii). While dismissing the revision application this Court has held that the appellate Court has correctly confirmed the order of conviction recorded by the learned J.M.F.C. and it has been correctly held by the appellate Court that, whether to join other persons/officers who may be responsible for dishonour of the cheque, as co-accused or not, was the choice of the complainant when the accused has undisputedly signed the instrument - cheque. 9. The accused and the complainant who are before the Court with their respective petition, have raised the points which may result into acquittal of the accused on compounding of offence in view of the provisions of section 147 of n.i. act. 10(i). Certain statements and submissions made before the Court by the learned Counsel Mr. Shah and Ms. Pandya for the respective party, may be mentioned in short, being found relevant : 10(ii). The accused Salvinder Kaur through the male members of her family was negotiating for a compromise with the complainant especially in the background of the role played by the other partners in the issuance of the cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The language of the written compromise and the affidavit of Kirpalsingh Pratapsingh Mori are very relevant in the background of the principle of earlier orders passed by the Court enlarging the time to the accused to surrender and the consent or assent of the original complainant in this regard. The revisional Court while disposing of the revision application filed by the original accused on 12-12-2003 had also granted some time to surrender and the same has been extended by subsequent orders passed in the background of consent on behalf of the original complainant and in absence of formal resistance by the State. 12. This Court while dealing with the Misc. Criminal Application No. 10100 of 2003 with Criminal Revision Application No. 449 of 2001 has permitted the parties to compound the offence even after the disposal/dismissal of revision application filed, challenging the conviction and confirmation of sentence by the appellant. The Court in the order dated 12-12-2003 has observed that - ....It is also jointly submitted that the said accused person has, after conviction and confirmation of the sentence by the appellate Court, surrendered to the jail on 17-11-2003 and, sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r an opportunity of hearing and at that stage the High Court again heard the matter and added a postscript in the judgment confirming the conviction and sentence. The petitioner thereafter had moved the High Court for a compromise to compound the offence. It was submitted to the High Court that the accused has paid a sum of ₹ 3,500/- to the complainant and the learned Counsel for the complainant confirmed of having received the amount of ₹ 3,500/- in token of the compromise arrived between the parties. In Para 1 of the cited decision the Apex Court has observed that - .....But the High Court did not and indeed could not take into consideration that application since it has deposed of the matter already. 15. So, it is the say of learned A.P.P. Ms. Joshi that when this Court has already rejected the revision application on merits the parties or any one of them can be permitted to place compromise and to get an order of acquittal from the very Court, is the question. Therefore, in more than one decisions, the Apex Court has observed that the petition invoking inherent powers under Section 482 Cr.P.C. is not maintainable when the earlier revision application filed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technical argument as to its sustainability. The Apex Court in case of Rajendra Prasad (supra) was dealing with a case related to first part of Section 482 Cr. P.C. but, when it comes to third part, the approach should remain more pragmatic and indirect relegation to Supreme Court, if legally possible, can be prevented. 18. In the case of Krishnan v. Krishnaveni, reported in 1997 (4) SCC 241 the Apex Court has held that though the inherent power of the High Court is very wide, yet the same must be exercised sparingly and cautiously particularly in case where the petitioner is shown to have already invoked the revisional jurisdiction under section 397 of the code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may in its discretion prevent the abuse of process or miscarriage of justice by exercising jurisdiction under section 482 of the code. 19. For the purpose of the present decision, the facts stated hereinabove are very relevant. On 12-12-2003 one adjournment or issuance of notice for verification of factum of actual negotiation/compromise and da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble :- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (II of 1974), every offence punishable under this Act shall be compoundable. 23. Section 147 of N.I. Act begins with a non-obstante clause and such clause is being used in a provision to communicate that the provision shall prevail despite anything to the contrary in any other or different legal provisions. So, in light of the compass provided, a dispute in the nature of complaint under section 138 of n.i. act, can be settled by way of compromise irrespective of any other legislation including Cr.P.C. in general and Sections 320320(1), (2) or (6) of the Cr.P.C. in particular. The scheme of Section 320 Cr.P.C. deals mainly with procedural aspects; but it simultaneously crystallises certain enforceable rights and obligation. So this provision has an element of substantive legislation, and therefore, it can be said that the scheme of Section 320 does not lay down only procedure; but still, the status of the scheme remains under a general law of procedure and as per the accepted proposition of law, the special law would prevail over general law. It is not necessary to enlist the authorities propoundin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of law which is not applicable generally but which applies to a particular or specific subject or class of subjects. Section 41 of Indian Penal Code stands on the same footing and defines the phrase 'special law'. Sometimes, a particular act or part of a procedural law may be considered as general and can be given effect to with reference to some act. But it may be special with reference to other act. 24(ii). In this connection I would like to quote the well accepted proposition of law emerging from various observations made by the Apex Court in different decisions as a gist of the principle and it can be summarised that, When a special law or a statute is applicable to a particular subject, then the same would prevail over a general law with regard to the very subject, is the accepted principle in the field of interpretation of statute. The operation or effect of a general Act may be curtailed by special Act even if a general Act contains a non-obstante clause. But here is not a case where the language of Section 320 Cr.P.C. would come in the way in recording the compromise or in compounding the offence punishable under Section 138 of the N.I. Act. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the point whether existence of mens rea is required to be brought on record legally to bring home the charge against the accused of the offence under section 138 of n.i. act, atleast can be inferred that the intention of legislature while inserting section 147 of the n.i. act was clear that the aggrieved party can compound the offence. On a plain reading of section 147 of n.i. act, it is clear that the same does not confer any obligation to obtain permission for entering into a compromise or to compound the offence. 26. Merely because the litigation has reached to a revisional stage or that even beyond that stage, the nature and character of the offence would not change automatically and it would be wrong to hold that at revisional stage, the nature of offence punishable under section 138 of the n.i. act should be treated as if the same is falling under Table-II of Section 320 Cr.P.C. It will be difficult to accept the proposition put forward by Ms. Joshi learned A.P.P. that even if the offence made punishable under I.P.C. and reference to Sub-section (1) of Section 320 i.e., Table I shown in Section 320 Cr.P.C. it cannot be compounded without prior permission. I would lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent with the liability to pay the amount of fine imposed by the Court and/or under an obligation to pay the amount of compensation if awarded, as per the scheme of N.I. Act, can compound the matter. The complainant i.e. person or persons affected can pray to the Court that the accused, on compounding of the offence may be released by invoking jurisdiction of this Court under Section 482 Cr.P.C. read with Article 226 of the Constitution of India. 28(i). If such interpretation is made that even after conclusion of all the proceedings a criminal case can be compounded then whether it would open Pandora box and would bring multiple proceedings ? One also can pause a question that such interpretation of law by the Court and exercise of inherent powers, would take the accused-defaulter to fight out the litigation till the last stage and thereafter the defaulter-accused can ask to accept compromise in the matter and in the circumstances whether this would be a healthy situation when the society is craving for and trying to carve out a value based life to one and all ? These questions are all ifs and buts. Courts of this country have efficiently dealt with such hypothetical situations. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex Court then, what will be situation, is question which is required to be considered in the background of another accepted progressive and pragmatic principle accepted by our Courts that, if possible, the parties should be provided Justice at the door step. The phrase 'Justice at the door step has taken this Court to think and reach to a conclusion that it can be considered and looked into as one of such special circumstances especially when grant of previous permission to enter into compromise for the purposes of compounding offence is not made a condition precedent in section 147 of n.i. act. Of course, the parties compounding the offence under section 138 of n.i. act obviously are bound to satisfy the conscious of the Court on facts, when the jurisdiction under Article 226 of the Constitution of India read with Section 482 Cr. P.C. is invoked with readiness and willingness to pay the reasonable amount of costs, if awarded while dealing with such petitions. 30. The Court is inclined to hold accordingly only because there is no formal embargo in section 147 n.i. act. So this principle would not help any convict in any other law where other applicable independent provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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