TMI Blog2022 (5) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.4,00,000/-. This payment of Rs.4,00,000/- after ten years of the issuance of the cheques, in the opinion of this Court, is grossly inadequate and is not sufficient to compensate the complainant so as to enable this Court to exercise its discretion to close the proceedings, particularly, in the circumstances, when the complainant is not willing to consent to compounding. Petition dismissed. - CRM-M-13193 -2018 ( O & M ) - - - Dated:- 5-5-2022 - HON BLE MR. JUSTICE JASJIT SINGH BEDI Ms. Jyoti Sareen , Advocate, for the petitioners Mr. Jitender Singh Dadwal, Advocate, for the respondent ORDER JASJIT SINGH BEDI, J. (Oral) 1. The present petition under Section 482 of the Code of Criminal Procedure has been filed with a prayer for the quashing of the order dated 21.03.2018 (Annexure P-5) passed by Sh. Kuldip Kumar Kareer, Additional Sessions Judge, Ludhiana, in Criminal Crl.A-6 dated 08.02.2016 titled Nidhi Knitwears versus Honey Hosiery Mills, vide which the application filed by the petitioner, for permission to compound the offence, has been dismissed. 2. The brief facts of the case are that the complainant/respondent M/s Honey Hosiery Mills f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The learned counsel for the petitioners contends that in view of the judgment in Damodar S. Prabhu s case (supra), the petitioners were ready and willing to deposit the requisite amount so as to finally settle the matter. She contends that in terms of the judgment of the Hon ble Supreme Court in M/s Meters and Instruments Private Limited And Another versus Kanchan Mehta 2017(4) RCR (Criminal) 476 , the consent of the complainant was not relevant and if the Court comes to the conclusion that the settlement was valid. the Court in the interest of justice, on being satisfied that the complainant had been duly compensated, can in its discretion, close the proceedings. Reliance has also been placed on the judgments of this Court in (i) Hem Lata versus Balwant Singh (CRR-1221 of 2012 decided on 01.03.2019) , (ii) Suba Singh versus Nirmal Singh and another, 2020(2) PLR 155. Reference has also been made to the judgment passed by the Himachal Pradesh High Court in the case of Vikas Jishtu versus Puran Chand Sharma and another, 2019 ACD 711 . 8. The learned counsel for the complainant, on the other hand, relied upon a judgment in JIK Industries Limited and others versus Amarlal V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lines 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 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 Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others versus Amarlal V. Jumani and another, 2012(1) RCR (Criminal) 822,, the Hon ble Supreme Court held as under:- 68. Both these aforesaid decisions were referred to and approved in Damodar (supra). The decision in Damodar (supra) was rendered by referring to Article 142 of the Constitution insofar as guidelines were framed in relation to compounding for reducing pendency of 138 cases. In doing so the Court held that attempts should be made for compounding the offence early. Therefore, the observations made in paragraph 24 of Damodar (supra), that the scheme contemplated under Section 320 of the Code cannot be followed `in the strict sense' does not and cannot mean that the fundamental provisions of compounding under Section 320 of the Code stand obliterated by a side wind, as it were. 69. It is well settled that a judgment is always an authority for what it decides. It is equally well settled that a judgment cannot be read as a statute. It has to be read in the context of the facts discussed in it. Following the aforesaid well settled principles, we hold that the basic mode and manner of effecting the compounding of an offence under Section 320 of the Code cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other versus Kanchan Mehta 2017(4) RCR (Criminal) 476 , the Hon ble Supreme Court by taking a somewhat contrary view held as under:- 18. From the above discussion following aspects emerge: i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is preponderance of probabilities . The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court. iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any means, it would not have been possible for the trial Court to give effect to any kind of agreement/ compromise or consent; on the part of the complainant on its own. Hence, the only question; which the trial Court could have considered is, whether the application filed by the petitioner for compounding of the offence under Section 138 of Negotiable Instruments Act, would have been allowed even without consent of the complainant. The trial Court has rightly rejected the application for compounding moved by the petitioners; for the lack of necessary consent from the complainant. This Court does not find any illegality or infirmity in the order passed by the trial Court. 10. So far as judgments cited by the learned counsel for the petitioner are concerned, this Court finds substance in the argument of the learned counsel for the respondents; that the judgment of the Hon'ble Supreme Court rendered in Damodar S. Prabhu's case (supra) does not specifically deal with the issue of compounding of an offence under Section 138 of Negotiable Instruments Act in absence of consent of the complainant. This judgment; primarily; proceeds on the assumption that, in the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to or applied by the Court; except with the consent of the complainant. 12. Although the counsel for the petitioners has rightly relied upon the subsequent judgment of the co-ordinate Bench of the Hon'ble Supreme Court rendered in M/s Meters and Instruments Private Limited's case (supra), however, this Court finds that this judgment, though has referred to the earlier judgment of the Supreme Court rendered in JIK Industries Limited's case (supra), however, has neither overruled the same nor has taken a detailed discussion regarding the proposition, which was specifically decided by the Hon'ble Supreme Court in the case of JIK Industries Limited's case (supra). Therefore, this Court is faced with a piquant situation, where there are two judgments from two co-ordinate Benches of the Hon'ble Supreme Court on the same proposition, but are diametrically opposed to each other. However, this dilemma has also been put to peace by the Hon'ble Supreme Court in another Constitutional Bench judgment, rendered in 2017(4) RCR (Civil) 1009 - National Insurance Company Limited v. Pranay Sethi and others. In this judgment, the Hon'ble Supreme Court has amply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption under Section 139 but the standard of such proof is preponderance of probabilities . The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court. iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused. iv) Procedure for trial of cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compensatory element, as may be found acceptable to the parties or the Court. 10. It may be noticed that when the impugned order was passed by the learned trial Court, the matter was at very initial stage. Even now, as would appear from the interim orders passed by this Court from time to time, it transpires that there is no head way in the proceedings. Thus, in consonance with the ruling of the Hon'ble Apex Court in Kanchan Mehta's case (supra), once the entire cheque amount stands paid, this Court is entitled to close the proceedings. This Court in Suba Singh versus Nirmal Singh and another 2020(2) PLR 155, did not consider the judgment in JIK Industries Limited and others (supra) but held as under:- 6. Compounding of the offence under Section 138 of the Negotiable Instruments Act, 1881, without the consent of the complainant has been drawing attention of the Courts from time to time and Hon'ble the Supreme Court in the case of Damodar S. Prabhu Vs. Sayed Babalal H., (2010) 5 SCC 663, had considered this aspect in detail and laid down certain guidelines. Subsequently, once again in the case of M/s Meters and Instruments Private Limited and another Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the complainant is satisfied and he has been adequately compensated. 12. This Court in M/s Anant Tools s case (supra), has comprehensively dealt with the judgments in JIK Industries case (supra) and M/s Meters and Instruments case (supra). In Para 12 of the judgment (reproduced hereinabove), a co-ordinate Bench of this Court came to the conclusion that if a subsequent Bench of the Hon ble Supreme Court differs with the view taken by an earlier Bench of equal strength, then the only course open for the subsequent Bench is to refer the matter to a larger Bench. In case, the above option has not been exercised by the subsequent Bench, then it is the view taken by an earlier Bench of the equal strength, which is to prevail. In Hem Lata s case (supra), the decision in JIK Industries Limited and others (supra) is referred but there is no discussion as to why the Court has chosen to follow the law laid down in M/s Meters and Instruments (supra) and not JIK Industries Limited and others (supra). In the cases of Suba Singh (supra) and Vikas Jishtu (supra), the reliance has been placed on M/s Meters and Instruments (supra) alone and JIK Industries Limited and others (supra) has not ..... 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