TMI Blog2018 (4) TMI 1908X X X X Extracts X X X X X X X X Extracts X X X X ..... r to compound the offence. 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 NI Act should be treated as if the same is falling under table-II of Section 320 IPC - The country is under the process of and progress towards globalization. So the intention of the legislature and object of enacting Banking , Public Financial Institutions and the Negotiable Instrument Laws (Amended Act) 1988 and subsequent enactment, i.e., Negotiable Instruments (Amendment Miscellaneous Provisions) Act, 2002 leads this Court to a conclusion that the offence made punishable under Section 138 of NI Act is not only an offence qua property but it is also of the nature of an economic offence, though not covered in the list of statutes enacted in reference to Section 468 of Cr.P.C. There is no formal embargo in Section 147 NI Act. So this principle would not help any convict in any other law where other applicable independent provisions are existing as the offence punishable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased to stay the warrant issued by the Ld. Trial, Mahesana in Criminal Case No.4109 of 2013 in the interest of justice; (C) Your Lordships be pleased to grant such other and further relief(s) as are deemed fit, just and proper in the facts and circumstances of the case in the interest of justice. It appears from the materials on record that the respondent no.2 lodged a complaint against the applicant herein for the offence punishable under Section 138 of the Negotiable Instruments Act. The proceedings of the Criminal Case No.4109 of 2013 ended with a judgment and order of conviction passed by the 3rd Additional Chief Judicial Magistrate, Mehsana, dated 15th December 2015. The applicant, being dissatisfied with the judgment and order of conviction, preferred the Criminal Appeal No.3 of 2016 in the Sessions Court at Mehsana. The appellate court, by judgment and order dated 22nd September 2017, dismissed the appeal, thereby affirming the judgment and order of conviction passed by the trial Court. It appears that at the time when the appellate court dismissed the appeal, the accused was not present, and in such circumstances, the appellate court issued warrant of arrest. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for the complainant, submitted that the entire cheque amount has been paid by the applicant to his client. The question before me is, whether it is permissible for me to record the settlement and quash the judgment and order of conviction passed by the trial Court and affirmed by the appellate court. This issue is no longer res integra in view of the decision of this Court in the case of Kripalsingh Pratapsingh vs. Salvinder Kaur Hardisingh Lohana, (2004)2 GLH 544. A learned Single Judge of this Court, after considering various decisions of the Supreme Court and the provisions of the Act more particularly section 147 of the Act, took the view that it would be permissible for the High Court in exercise of its inherent powers under section 482 of the code to recall its earlier order and record the settlement arrived at between the parties and acquit the accused of the charge. I may quote the observations made by the learned Single Judge as contained in paragraphs-14 to 33. 14. The resistance placed by learned APP Ms. Nandini Joshi is that in view of the provisions of sub-section 6 of Section 320 Cr.P.C.. and the observations made by the Apex Court in the case of Tanveer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d principle has emerged that the petitions invoking inherent powers under Section 482 Cr.P.C. after dismissal/disposal or revision application under Section 397 Cr.P.C. read with Section 401 Cr.P.C., are not maintainable by the same party, more so when no special circumstances are made out. The gist of this ratio is reflected in the decision reported in AIR 2001 SC 3524 in the case of Rajinder Prasad v. Bashir and ors. It was contended before the Apex Court that as the earlier revision petition filed by the accused persons under Section 397 of the Code has been rejected by the High Court vide order dated 13-7-1990, they had no right to file the petition under Section 482 of the Code with prayer for quashing the same order. While dealing with the above contention the Apex Court observed that ...We do not agree with the arguments of the learned counsel for the respondents that as the earlier application had been dismissed as not pressed, the accused had acquired a right to challenge the order adding the offence under S. 395 of the Code. ... (i.e. IPC) It is further observed that We are of the opinion that no special circumstances were spelt out in the subsequent applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. So the present petitioners stand on a better legal footing. 21. The embargo of sub-section 6 of Section 320 Cr.P.C. pointed out by Ms. Joshi learned APP would not come in the way so far as the relief prayed in both the petitions are concerned. I would like to reproduce the relevant part of Section 320 of Cr.P.C: 320 (1) The offences punishable under the sections of the Indian Penal Code specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that table. (2) The offences punishable under the sections of the Indian Penal Code specified in the first two columns of the Table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that Table. (3)... (4)... (5)... (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. 22. I am not in agreement that when the adjudication of a criminal offence has reached to the state of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear While therefore, the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be so notwithstanding anything contained in any other law for the time being in force . It appears to us that it would be a proper interpretation of the provisions of clause (b) of Section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under Section 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, but, where this is not so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permissible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. This view will, in our opinion, give proper effect to the non obstante clause in clause (b) with due regard to its other provision that the letting value should be reasonable . Though the facts are materially different the ratio can be applied. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24(iv). The Apex Court, while dealing with Section 41 of Indian Penal Code in the case of Kaushalya Rani v. Gopal Singh reported in AIR 1964 SC 260 has observed that the expression 'general law and 'special law are relative terms and referred to a particular subject dealt with by respective act so that it is not possible logically to label any set of laws as being general laws or special law. The stamp law contained in the Stamp Act will come under description of a special law in relation to crime in connection with the said law. But still, the law as regards Stamp Act will be a general law. The court is aware that the expression 'special law defined in Section 41 of Indian Penal Code cannot be taken to mean only enactment which creates fresh offences not made punishable under the Indian Penal Code. But undisputedly the offence made punishable under Section 138 NI Act is a subject not specifically dealt with by Indian Penal Code. The liabilities created by Sections 138,139,141 and 143 of NI Act are in contemplation with an offence otherwise not contemplated by Indian Penal Code. In this background, Section 147 of NI Act would prevail over the scheme including sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prescribed for the courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. 2. A large number of cases are reported to be pending under Sections 138 to 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 representations, it has been decided to bring out, inter alia the following amendments in the Negotiable Instruments Act, 1881, namely. (i) xxxxx (ii) xxxxx (iii) xxxxx (iv) to prescribe procedure for dispensing with preliminary evidence of the complainant. (v) (vi) (vii) to make the offences under the Act compoundable. ........ 5. xxxxx 6. The Bill seeks to achieve the above objects. 27. The country i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant victim of criminal wrong should be a party petitioner to such petition or at least a party respondent supporting the say of the petitioner that the grievance is settled to the satisfaction and the convict may be either acquitted or released from the prison or any other appropriate order may be passed. 28(ii). Technically speaking, in such an eventuality, the fine imposed, if not paid to the State or the same is required to be refunded to the person released or acquitted on compounding the offence, then the court while passing orders dealing with such petitions, the parties can be fasten with the liability of costs for the contingency created by them in protracting the litigation and not compounding the offence at appropriate stage. Thus, at appropriate stage, the court can take care of the fact situation while dealing with such petitions/revisions pending in the Civil Court qua the same transaction. 29. The court is aware about one accepted principle of law and the principle governing the concept of judicial restrain that unless the court is asked to answer a particular point, normally the court should not venture to deal with the points which are not raised by any of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 32. In view of the above, the accused-Salvinder Kaur Harditsingh Lobana shall not be under obligation to surrender to the jail authorities and shall be treated as acquitted on account of compounding of the offence with the complainant/person affected. 33. Accordingly, both the petitions are required to be allowed and they are allowed. Rule made absolute in both the petitions in the above terms. Both the petitioners shall pay costs of ₹ 2500/- (two thousand five hundred) each to the Respondent-State. My attention is also drawn by the learned advocates appearing for the respective parties to a decision of the Supreme Court in the case of K.Subramanian v. R.Rajathi, (2010)15 SCC 352, wherein the petitioner was convicted under section 138 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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