TMI Blog2021 (8) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. The court can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution - In the instant case, it is true that this Court had dismissed the criminal revision and upheld the conviction and sentence passed by the court below but it cannot be lost sight of the fact that this Court has the power to intervene in exercise of the powers vested under section 482 Cr.P.C. only with a view to do the substantial justice or to avoid miscarriage and the spirit of the compromise arrived at between the parties. This is perfectly justified and legal too. In the instant case, the petitioner is invoking the inherent power as vested under section 482 Cr.P.C. after the dismissal of the revision petition under section 397 Cr.P.C. read with section 401 Cr.P.C. - the petitioner has attempted to invoke the jurisdiction of this court vested under section 482 Cr.P.C. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m one year simple imprisonment and fine of ₹ 3,00,000/- (Rupees three lakhs) vide judgment and order dated 27.11.2019. Being aggrieved the petitioner had preferred a Criminal Appeal No.01 of 2020 before the Additional Sessions Judge, Faizabad and at the time of hearing the appeal, the petitioner had deposited ₹ 1,00,000/- (one lakh) before the Additional Sessions Judge, Faizabad, ultimately the appeal had been dismissed vide order dated 14.12.2020 against which the petitioner has preferred a Criminal Revision No.664 of 2020 before this Hon'ble Court which too had been dismissed at the admission stage vide order dated 18.12.2020. After the dismissal of the criminal revision, the complainant/opposite party no.2 and the petitioner have entered into settlement through his father and is ready to make payment of rest of ₹ 2,00,000/- (Two Lakhs) by means of Demand Draft No.374901 of State Bank of India to opposite party no.2. On 22.01.2021 the petitioner and the opposite party no.2 have amicably entered into the agreement, which is placed on record as Annexure 4 to the instant petition. The accused/petitioner has moved this court under section 482 of Cr.P.C. for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:- THE GUIDELINES (i) In the circumstances, it is proposed as follows: (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. (c) Similarly, if the application for compounding is made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his approach, prison sentence of more than one year may not be required in all cases. (v) 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. 6. Learned counsel for the petitioner has further submitted that the petition under section 482 Cr.P.C. is maintainable after the dismissal of the revision on merit. To support of this arguments, he has relied upon the judgment of Gujarat High Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f legally possible, can be prevented. 31. In the circumstances, it is hereby declared that the compromise arrived between the parties to this litigation out of court is accepted as genuine and the order of conviction and sentence passed by the learned JMFC, Vadodara and confirmed in appeal by the learned Sessions Judge, Fast Track Court, Vadodara, therefore, on the given set of facts are hereby quashed and set aside as this court intends, otherwise to secure the ends of justice as provided under section 482 Cr.P.C. Obviously the order disposing Revision Application would not have any enforceable effect. 7. Learned counsel has also relied upon the judgment of Hon'ble the Apex Court in the case of Vinay Devanna Nayak vs. Ryot Seva Sahkari Bank Limited reported at AIR 2008 SC 716 wherein the Hon'ble Apex Court has held as under : 18. Taking into consideration even the said provision (Section 147) and the primary object underlying Section 138, in our judgment, there is no reason to refuse compromise between the parties. We, therefore, dispose of the appeal on the basis of the settlement arrived at between the appellant and the respondent. 19. For the foregoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 10. Learned AGA has also submitted that when this Court has already rejected the revision application on merits, whether 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 Hon'ble 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 under Section 397 Cr.P.C. read with Section 401 Cr.P.C. seeking same or similar relief, when dismissed on merit, or has not pressed. However, in the same way the Hon'ble Apex Court has observed in more than one cases that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Court, compound such offence. (b) When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908 (5 of 1908) of such person may, with the consent of the Court, compound such offence. 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 Session 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. 8) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. 9) No offence shall be compounded except as provided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties undertake that there is no other complaint/ petition/ suit/ FIR pending against each other of the same dispute and if the same is found, the same compromised Agreement. shall in stand null and void and terms of this Settlement 6. That the Second Party shall make no further complaint/ First Information Report against First Party or his family members regarding the said bounced cheques, this clause shall be an exception for any other fresh cause of action(s) or activity(s). 7. That both the Parties shall assist each other in prudently pursuing the petition to quash the judgment dated 27.11.2019 passed by Additional Court, Faizabad and subsequent judgment passed by Additional District Judge, Court 110. 10, Faizabad incriminal appeal no. 01/2020 and other subsequent proceeding (s) and shall appear in the concerned Court as and when necessary and required to record necessary statements/pleadings as per law. DIA 8. That both the parties shall have on satisfaction of aforementioned terms no further claims whatsoever against each other from this day onwards and terms of the aforementioned deed are binding on them. Any party who denies the above mentioned compromise/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon'ble Apex Court and I do not think it necessary to enlist those decisions which are taken into consideration for the purpose of the present proceedings. 20. In the instant case, the petitioner is invoking the inherent power as vested under section 482 Cr.P.C. after the dismissal of the revision petition under section 397 Cr.P.C. read with section 401 Cr.P.C. In this circumstances, I have to examine the maintainability of the present petition under section 482 Cr.P.C. and also to examine as to whether for entertaining the aforesaid petition, any special circumstances are made out or not. The gist of the ratio is reflected in the decision of the Hon'ble Apex Court in the case of Rajinder Prasad vs. Bashir and Others; AIR 2001 SC 3524. In that case, it was contended before the Apex Court that as per the earlier revision filed by the accused persons under section 397 of the Code has been rejected by the High Court vide order dated 13.05.1990, they had no right to file the petition under section 482 Cr.P.C. with the prayer for quashing the same order. While dealing with the above contention, the Apex Court observed that - We are of the opinion that no special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure, 5th Edition : 17.2 - compounding of offences - A crime is essentially a wrong against the society and the State. Therefore, any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. However, where the offences are essentially of a private nature and relatively not quite serious, the Code considers it expedient to recognize some of them as compoundable offences and some others as compoundable only with the permission of the court... 25. Section 147 of NI 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 section 320 (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 crystallizes certain enforceable rights and obligation. Hence, this pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble Apex Court in different decisions as a gist of the principle and it can be summarised as under: 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. 27. In reference to offence under section 138 of N.I. Act read with section 147 of the said Act, the parties are at liberty to compound the matter at any stage even after the dismissal of the revision application. Even a convict undergoing imprisonment 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. If the parties are asked to approach the Apex Court then, what will be situation, is a question which is required to be considered in the background of another accepted progressive and pragmatic principle accepted by ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Act. 2. A large number of cases are reported to be pending under Sections 138 and 142 of the Negotiable Instruments Act in various courts in the country. Keeping in view the large number of complaints under the said Act, pending in various courts, a Working Group was constituted to review Section 138 of the Negotiable Instruments Act, 181 and make recommendations as to what changes were needed to effectively achieve the purpose of that Section. 3. ............. 4. Keeping in view the recommendations of the Standing Committee on finance and other R/SCR.A/2491/2018 ORDER representations, it has been decided to bring out, inter alia the following amendments in the Negotiable Instrument Act 1881, namely. (i) xxxxxx (ii) xxxxxx (iii) xxxxxx (iv) to prescribe procedure for dispensing with preliminary evidence of the complainant. (v) xxxxxx (vi) xxxxx (vii) to make the offences under the Act compoundable. ........ 5. xxxxxx 6. The Bill seeks to achieve the above objects. 30. In a commentary the following observations have been made with regard to offence punishable under section 138 of the N.I. Act. [Cited from : Arun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial endorsement of the above quoted guidelines as given in the case of Damodar S. Prabhu (supra) could be seen as an act of judicial law making and therefore an intrusion into the legislative domain. It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. I have already explained that the scheme contemplated under Section 320 of the Cr.P.C. cannot be followed in the strict sense. 35. In view of the aforesaid discussion, the parties, in reference to offence under Section 138 N.I. Act read with Section 147 of the said Act are at liberty to compound the matter at any stage. The complainant i.e. the 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. 36. Generally, the powers available under Section 482 of the Code would not have been exercised when a statutory remedy under the law is available, however considering the peculiar set of facts and circumstances it would not be in the interest of justice to relegate the ..... 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