TMI Blog2022 (5) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. To the contrary, provisions of section 147 of the Act though start with a non obstante clause but have overriding effect on the provisions contained under section 320 Cr.P.C. This Court finds no impediment in accepting the prayer made in the instant petition and accordingly, same is allowed - CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 107 of 2022 - - - Dated:- 2-3-2022 - HON BLE MR. JUSTICE SANDEEP SHARMA Petitioner (By Mr. Naresh Sharma, Advocate) Respondents (By Mr. Ajay Sharma, Advocate, For R-1) (By Mr. Sudhir Bhatnagar And Mr. Desh Raj Thakur, Additional Advocates General, With Mr. Narender Thakur and Mr. Gaurav Sharma, Deputy Advocates General, For R-2) O R D E R Instant petition filed under Section 482 Cr.PC, has been filed with a prayer to compound the offence committed by the petitioner under Section138 of the Act in case No. 58-3 of 2012/11 titled as Ram Rattan v. Hira Nand decided by the learned JMFC-III, Shimla, vide judgment/order dated 24.6.2013/16.7.2013 and further to quash the sentence of six months awarded to the petitioner. 2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2499 of 2021 in Cr.R. No. 79 of 2019, Geeta Devi v. Surinder Singh and Anr, Mr. Naresh Sharma, learned counsel submitted that this Court has ample powers under Section 147 of the Act to compound the offence in those cases where accused already stands convicted. Apart from above, Mr. Sharma, also placed reliance upon judgment dated 13.8.2021, passed by the High Court of Judicature at Allahabad, Lucknow Bench, in Rishi Mohan Srivastava v. State of UP and Anr , wherein court while exercising power under Section 482 Cr.PC annulled the judgment of conviction and order of sentence recorded by learned trial court, further affirmed by High Court on the basis of compromise arrived inter-se parties. 6. Mr. Ajay Sharma, learned counsel appearing for respondent No.1-complainant, while fairly admitting factum with regard to compromise arrived inter-se parties, submitted that since entire amount of compensation awarded by the court below stands received by the respondent-complainant, he shall have no objection in case judgment of conviction and order of sentence recorded by the learned trial court is quashed and set-aside and offence alleged to have been committed by the petitioner un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2016, the aforesaid revision petition filed by the petitioner was dismissed by this Court while upholding and affirming the judgment and order of conviction and sentence passed by the trial Court as well as by the Appellate Court. It was jointly submitted by the learned counsel for the parties that after the order dated 6.10.2016 the parties have amicably settled their dispute and entered into compromise and the amount in the dispute has been paid by the petitioner to the respondent-complainant. It was further submitted that although the revision petition has been dismissed by this Court on merits vide order dated 6.10.2016, but even then that order can be recalled in the light of provisions of Section 147 of N.I.Act which permits compound of the offence under Section 138 of the Act at any stage and the accused can be acquitted. In support of their submissions, they relied upon the case of K. Subramanian Vs. R.Rajathi reported in (2010) 15 SCC 352 and order dated 7.7.2015 passed by a Single Bench of Hon ble Gujarat High Court in S.B. Criminal Misc. Application (Recall) No.10232/2015 filed in Special Criminal Application No.3026/2014. On consideration of submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would indicate that indeed a compromise has taken place between the petitioner and the respondent and the respondent has accepted the compromise offered by the petitioner pursuant to which he has received a sum of Rs.4,52,289. In the affidavit filed by the respondent a prayer is made to permit the petitioner to compound the offence and close the proceedings. 8. Having regard to the salutary provisions of Section 147 of the Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, this Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code. 12. The Hon ble Apex Court in the aforesaid judgment has categorically held that in view of the provisions contained under Section 147 of the Act, read with Section 320 of Cr.P.C, compromise arrived inter se the parties, can be accepted and offence committed under Section 138 of the Act, can be ordered to be compounded. 13. Another question which arise for determination/ adjudication of this Court is with regard to maintainability of present review petition. Admittedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a nonspeaking order of an SLP preferred against the judgment of which review is sought but with dismissal as withdrawn of the SLP. Though the review petitioners, while seeking to withdraw the SLP also sought liberty to move this Court in review petition but the Supreme Court merely dismissed the SLP as withdrawn and has not stated that the liberty sought had been granted. 9. The question which arises is, whether the dismissal as withdrawn of the SLP, even in the absence of the words with liberty sought is to be read as grant of liberty. 10. The review petitioners obviously were of the opinion that without the aforesaid words, they did not have liberty to approach this Court by way of review and claim to have made an application to the Supreme Court in this regard but which application is stated to have been refused to be listed. 11. In our opinion, it is not for us to venture into, whether the order, notwithstanding having not provided that the review petitioners had been granted liberty, grants liberty or not. It cannot be lost sight of that it is not as if the counsel for the review petitioners, when the SLP came up before the Court, stated that the filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable to interference in review; but the High Court, if it exercises a power of review or deals with the review application on merits, cannot be said to be wrong in exercising statutory jurisdiction or power vested in it. It was expressly held that review can be filed even after SLP is dismissed and as also before special leave is granted but not after it is granted. It was held that once special leave is granted, the jurisdiction to consider the validity of the High Court s order vested in the Supreme Court and the High Court cannot entertain a review thereafter unless such a review application was preferred in the High Court before the SLP was granted. With respect to Abbai Maligai Partnership Firm (supra) it was observed that the facts and circumstances of the case persuaded the Supreme Court to form an opinion that the tenants were abusing the process of the Court by approaching the High Court and the very entertainment of review petition and then reversing the earlier order was an affront of the order of the Supreme Court. It was explained that the three Judges Bench in Abbai Maligai Partnership Firm (supra) nowhere in the course of judgment relied on the doctrine of me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e observations, of preferring review petition after the dismissal of SLP amounting to abuse of the process of the Court, in Abbai Maligai Partnership Firm (supra) as well as in Sunil Kumar (supra) are on a factual finding of the petitioners therein abusing the process of the Court and not on the maintainability of the review petition. Certainly, if we are to find the review petitioners herein also to be abusing the process of the Court by preferring this review petition after withdrawal of the SLP preferred against the judgment of which review is sought, the review petition of the review petitioners would also suffer the same fate. However it would not make the review not maintainable. 15. Reliance is also placed upon the judgment passed by Hon ble Apex Court in Kunha Yammed and others versus State of Kerala and others; (2000) 6 Supreme Court Cases 359, wherein it has been held as under:- 22. We may refer to a recent decision, by Two- Judges Bench, of this Court in V.M. Salgaocar Bros. Pvt. Ltd. Vs. Commissioner of Income Tax 2000 (3) Scale 240, holding that when a special leave petition is dismissed, this Court does not comment on the correctness or otherwise of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court . 12. Bare perusal of aforesaid judgment rendered by this Court, which is squarely based upon the judgment passed by Hon ble Apex Court, reveals that doctrine of merger does not apply in the case of dismissal of SLP. In the case at hand, SLP having been filed by the petitioner/applicant herein came to be dismissed in limini by nonspeaking order and as such, does not result in the merger of impugned order with the order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e(supra) has categorically held that offence punishable under Section 138 of the Act can be compounded even in those cases where accused stands already convicted. 15. Hon ble Apex Court in K. Subramanian vs. R. Rajath, (2010)15 Supreme Court Cases 352, as has been taken note by this Court in its earlier judgment passed in Cr.MP No.1198 of 2017 has clarified that having regard to the salutary provisions of Section 147 of the Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, compromise arrived inter -se parties, can be ordered to be compounded. 8. Careful perusal of the afore judgment reveals that petitioner in that case approached this Court with prayer to compound the offence while exercising power under Section 147 of the Act after dismissal of his SLP filed against the judgment passed by this Court upholding the judgment of conviction and order of sentence passed by the court below. One of the issue decided in the aforesaid judgment was with regard to merger of judgment of conviction and order of sentence passed by the court below with that of order passed by the Hon ble Apex Court dismissing the SLP of the accused in limine. Though in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Allahabad High Court that court can always take note of any miscarriage of justice and prevent the same by exercising its powers under Section 482 of Cr.P.C. Relevant paras of Rishi Mohan Srivastava s case read as under: 15. It is well settled that inherent powers under section 482 Cr.P.C. can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. It is also well settled that if an effective alternative remedy is available, the High Court will not exercise its inherent power under this section, specially when the applicant may not have availed of that remedy. 16. Inherent powers under Section 482 of Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to 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 exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subsequent application for invoking the jurisdiction of the High Court under section 482 of the Code and the impugned order is liable to be set aside on this ground alone. So it can be legitimately argued and inferred and held that in all cases where the petitioners are able to satisfy this court that there are special circumstances which can be clearly spelt out, subsequent application invoking inherent powers under section 482 Cr.P.C. can be moved and cannot be thrown away on the technical argument as to its sustainability. 21. In the case of Krishan Vs. Krishnaveni, reported in (1997) 4 SCC 241 , Hon'ble 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 a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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. For the sake of convenience, I would like to quote the observations of Hon'ble the Apex Court in the case of Municipal Corporation, Indore vs. Ratnaprabha reported in (AIR 1977 SC 308) which reads as under : As has been stated, clause (b) of section 138 of the Act provides that the annual value of any building shall notwithstanding anything contained in any other law for the time being in force be deemed to be the gross annual rent for which the building might reasonably at the time of the assessment be expected to be let from year to year 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible, the parties should be provided justice at the door step. The phrase justice at the door step has taken the court to think and reach to a conclusion that it can be considered and looked into as one of such special circumstances for the purpose of compounding the offence under section 147 of the N. I. Act. 12. Needless to say, the operation or effect of a general Act can be curtailed by special Act even if a general Act contains a non obstante clause and as such, provisions contained under Section 320 Cr.P.C. would not come in the way in recording the compromise or in compounding the offence punishable under section 138 of the Act. To the contrary, provisions of section 147 of the Act though start with a non obstante clause but have overriding effect on the provisions contained under section 320 Cr.P.C. 13. Consequently, in view of the detailed discussion made herein above as well as law taken note herein above, this Court finds no impediment in accepting the prayer made in the instant petition and accordingly, same is allowed, as a consequence of which, judgment of conviction and order of sentence dated 24.6.2013/16.7.2013 in case No. 58-3 of 2012/11 passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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