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TMI Blog2024 (5) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... mittedly, some of these cheques were dishonoured and in Nov-Dec 2013 the complainant initiated proceedings under section 138 of the Negotiable Instruments Act (hereinafter referred to as "NI Act"). Additionally, in January 2014 complainant filed a complaint under Section 156(3) of Criminal Procedure Code (hereinafter referred to as 'CrPC') which led to an FIR No.35 of 2014 at Police Station Mahesh Nagar (Ambala) under Sections 406, 420 and 120B of Indian Penal Code (hereinafter referred to as 'IPC') against the appellant, wherein it was said that the appellant had wrongfully retained the hard-earned money of the complainant and had cheated her. The charge sheet dated 21.07.2014 under Sections 406, 420 r/w 120B of IPC was filed against the appellant and trial commenced in the said FIR case. 3. In NI Act case, the trial court vide order dated 25.05.2015/29.05.2015 convicted the appellant under Section 138 of the NI Act and sentenced him to 2 years of rigorous imprisonment along with direction to pay the amount of cheques. In the appeal filed by appellant before the Additional Sessions Judge, both sides made an effort to settle the dispute and consequently the matter was placed befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dismissed, the trial court vide order dated 09.02.2021 refused to accept the Demand Draft presented by the appellant by noting that such an application is not maintainable. 6. This order dated 09.02.2021, where the trial court refused to accept the DD for the remaining Rs.20 lacs, was challenged by the appellant before the High Court through an application under Section 482 of CrPC. Vide impugned order dated 29.11.2022, the High Court dismissed the application of appellant on the ground that the appellant failed to deposit the remaining Rs. 20 lacs within the time stipulated (3 weeks) in the Supreme Court order dated 29.11.2019. Now, the appellant is before us in the present appeal. 7. On 14.03.2023, this Court passed an interim order directing the appellant to deposit Rs.20 lacs before the trial court and sought a compliance report from the trial court. This Court order dated 14.03.2023 reads as follows: "The petitioner shall deposit the sum of Rs. 20 lakhs before the trial court within two weeks. The trial court shall pass an order recording the deposit and also indicate whether the petitioner has duly complied with the present order. A copy of this order shall be commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit stating that no settlement has been reached between the parties as alleged by the appellant. On the other side, the counsel of the appellant contended that since the appellant has paid back the entire amount of Rs.1.55 crore and has also paid a further sum of Rs.10 lacs towards the interest, there is no ground left for continuing criminal proceedings against the appellant. 10. The significant fact here is that pending appeals before Additional Sessions Judge against the appellant's conviction under Section 138 of the NI Act, initially both the sides had entered into a settlement in the Lok Adalat, where they agreed that if the appellant compensates the complainant by repaying the entire amount of Rs.1.55 crore then they would get the offences compounded or quashed. However, the trial court by order dated 11.07.2016 declared the settlement as frustrated on the ground that the appellant could not pay the complainant on the deadlines stipulated in the said settlement and the trial court might have been right in doing so because settlement itself had a clause which read as follows: "5. That in case of default of making payment well in time according to dates mentioned above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including after conviction, like the present case (See: K.M Ibrahim v. K.P Mohammed & Anr. (2010) 1 SCC 798 and O.P Dholakia v. State of Haryana & Anr. (2000) 1 SCC 762). In the case at hand, initially, both sides agreed to compound the offence at the appellate stage but the appellant could not pay the amount within the time stipulated in the agreement and the complainant now has shown her unwillingness towards compounding of the offence, despite receiving the entire amount. The appellant has paid the entire Rs.1.55 crore and further Rs.10 lacs as interest. As far the requirement of 'consent' in compounding of offence under section 138 of NI Act is concerned, this Court in JIK Industries Limited & Ors. v. Amarlal V. Jamuni & Anr. (2012) 3 SCC 255 denied the suggestion of the appellant therein that 'consent' is not mandatory in compounding of offences under Section 138 of NI Act. This Court observed that: "57. Section 147 of the Negotiable Instruments Act reads as follows: "147. Offences to be compoundable.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable." 58. Relying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge. of CrPC, has been held to be 'not a good law' by this Court in the subsequent 5 judges bench judgement in Expeditious Trial of Cases Under Section 138 of NI Act, 1881, In re, (2021) 16 SCC 116 Para 20. All the same, in this particular given case even though the complainant has been duly compensated by the accused yet the complainant does not agree for the compounding of the offence, the courts cannot compel the complainant to give 'consent' for compounding of the matter. It is also true that mere repayment of the amount cannot mean that the appellant is absolved from the criminal liabilities under Section 138 of the NI Act. But this case has some peculiar facts as well. In the present case, the appellant has already been in jail for more than 1 year before being released on bail and has also compensated the complainant. Further, in compliance of the order dated 08.08.2023, the appellant has deposited an additional amount of Rs.10 lacs. There is no purpose now to keep the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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