TMI Blog2023 (4) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... SUPREME COURT] , can proceed to compound the offence. Application disposed off. - Cr MMO No. 1190 of 2022 - - - Dated:- 4-4-2023 - Hon ble Mr. Justice Sandeep Sharma , Judge For the Petitioner : Mr. Digvijay Singh , Advocate For the Respondents : Mr. Sandeep Mahajan , Advocate ORDER Sandeep Sharma, Judge ( oral ) : By way of instant petition filed under S.482 CrPC read with S.147 of the Negotiable Instruments Act (hereinafter, Act ), petitioner-accused (hereinafter, accused ) has prayed for compounding of offence punishable under S.138 of the Act and for setting aside judgment dated 30.9.2019, passed by learned Additional Chief Judicial Magistrate, Court No.1, Mandi, District Mandi, Himachal Pradesh in Cr. Case No. 735 of 2015, titled LIC Housing Finance Limited v. Hoshiyar Singh and judgment dated 25.3.2022 passed by learned Sessions Judge, Mandi, in Cr. Appeal No. 175 of 2019. The accused preferred a criminal revision petition before this court i.e. Cr. Revision No. 228 of 2022, which has been dismissed on 23.11.2022. 2. Precisely, the facts of the case as emerge from the record are that the respondent-complainant (hereinafter, complainant ) ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant to make statement before this Court. He states that since, after passing of judgment dated 23.11.2022 in Cr. Revision No. 228 of 2022, accused has paid entire amount of compensation awarded by learned trial Court, complainant shall have no objection in case prayer made through instant application for compounding of offence is accepted and accused is acquitted of the charges framed against him under S.138 of the Act. While admitting contents of the compromise to be correct, he also admits his signatures thereupon. His statement is taken on record. 7. Learned counsel for the parties state that since entire amount of compensation already stands paid to the complainant by the accused, complainant shall have no objection in case prayer made on behalf of the accused for compounding of the offence is accepted, as such, this Court, while exercising power under S.482 CrPC and S.147 of the Act can proceed to compound the offence under Section 138 of the Act and acquit the accused of the charges framed against him. 8. Before considering the prayer made in the instant petition, the foremost question which needs determination is, whether this court can recall its judgment dated 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 submissions jointly made on behalf of the respective parties and the material including the compromise entered into between the parties and the fact that the amount in dispute has been paid by the accused-petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, instant review petition has been filed after withdrawal of Special Leave Petition, preferred by the applicant/ petitioner against the judgment passed by this Court in Criminal Revision No.394 of 2015, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 SLP was misconceived and withdrew the same. The order records that it was after some arguments that the counsel for the review petitioners sought permission to withdraw the SLP. It is also not as if the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 merger for taking the view they had taken and rather a careful reading of Abbai Maligai Partnership Firm (supra) also fortified the view taken in Kunhayammed (supra). 16. It would thus be seen that Kunha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. It is quite apparent from the aforesaid exposition of law laid down by the Hon ble Apex Court that doctrine of merger does not apply in the case of dismissal of special leave petition. In the case at hand, special leave to appeal having been filed by the petitioner/applicant has been dismissed as withdrawn by non-speaking order and as such, does not result in the merger of impugned order in the order of the Hon ble Supreme Court. 17. Consequently, in view of the detailed discussion made hereinabove as well as law laid down by the Hon ble Apex Court, this Court holds that review petition filed after dismissal of Special L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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