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TMI Blog2024 (8) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... t') against the respondents. On receipt of the summons, the respondents appeared before the Court and expressed their readiness to settle the matter by effecting the payment. An application to permit to compound the offence was filed under Section 320 of the Code of Criminal Procedure, 1973 (for short, the 'Cr.P.C.'). The Trial Court dismissed the same as per order dated 06.02.2023. Aggrieved by the order of the Trial Court, respondents took up the matter before the High Court challenging the order dismissing the application for compounding the offence under Section 138, N.I. Act also seeking quashment of C.C. No. 5564 of 2022 and all further proceeding thereon in Criminal M. C. No. 970 of 2023. As per the impugned judgment the High Court, apparently, exercised the inherent power under Section 482, Cr.P.C., coupled with those under Section 147, N.I. Act, and ordered thus:- "17. Accordingly, the present petition is allowed and the offence of the petitioners/ accused persons in Complaint Case No. 5564/2022 titled A.S. Pharma Pvt. Ltd. vs M/S Nayati Medical Pvt. Ltd. & Ors. pending before the learned Trial Court is hereby compounded, albeit subject to the petitioners depositing befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Section 482, Cr.P.C, as also Section 147 of the N.I. Act. Section 482, Cr.P.C., reads thus: - "482. Saving of inherent powers of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 6. In the decision in Monica Kumar (Dr.) v. State of Uttar Pradesh [(2008) 8 SCC 781], this Court held that the inherent jurisdiction under Section 482, Cr.P.C, would be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself viz., to give effect to any order under Cr.P.C., or to prevent abuse of process of any Court or otherwise to secure the ends of justice. 7. In the decision in Arvind Barsaul (Dr.) v. State of M.P. [(2008) 5 SCC 794], this Court held that though offence under Section 498A, IPC is not compoundable, but when parties have compromised, continuance of proceedings would be an abuse of process of law and hence, could be quashed on a petition filed under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the complainant. 12. Before delving into the question whether consent of the complainant, who is to compound the offence, is required to exercise the power under Section 147, N.I. Act, it is only appropriate to refer to paragraphs 12 and 13 of the impugned judgment of the High Court. They read thus: - "12. Broadly speaking, in the considered opinion of this Court, the essence of all the aforesaid pronouncements by the Hon'ble Supreme Court coupled with Section 138 of the N.I. Act read together with the other provisions of the N.I. Act is that the consent of the complainant is not mandatory at the time of compounding of the offence under Section 138 of the N.I. Act, once the complainant has been equitably compensated. 13. In effect, whence the complainant has been reasonably compensated the accused can be discharged/ acquitted even without the consent of the complainant, in the interest of justice and to prevent the abuse of the process of law, since once an accused accepts his liability to pay the cheque amount, there will be no fruitful purpose in keeping the complaint alive." (Underline supplied) 13. Having gone through the factual matrix of the case on hand and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts Private Ltd. & Anr. V. Kanchan Mehta [(2018) 1 SCC 560] and in un-ambiguous terms held that for compounding the offence under Section 138, N.I. Act, 'consent' of the complainant is required. In Kanchan Mehta's case (supra) even after referring to the decision in JIK Industries ltd. case (supra) this Court held that even in the absence of 'consent' Court could close criminal proceedings against an accused in a case under Section 138, N.I. Act, if the accused had compensated the complainant. It was held therein thus: - 18.3. 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. 16. But then, it is to be noted that later a five-Judge Constitution Bench in Expeditious Trial of Cases Under Section 138, N.I. Act, 1881, In re, (2021) 16 SCC 116 held that observation in Kanchan Mehta's decision giving discretion to the trial Court "to close the proceedings and discharge the accused", by reading Section 258, Cr.P.C., which confers the power to stop proceeding in certain cases, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter alia, taking note of the fact that the accused therein had compensated the complainant and furthermore deposited the additional amount, as has been ordered by this Court. We have no doubt in holding that merely because taking into account such aspects and circumstances this Court 'quashed' the proceedings by invocation of the power under Article 142 of the Constitution of India, cannot be a reason for 'compounding' an offence under Section 138, N.I. Act, invoking the power under Section 482, Cr.P.C. and the power under Section 147, N.I. Act, in the absence of consent of the complainant concerned in view of the decision referred hereinbefore. In this context, this is to be noted that the fact that this Court quashed the proceedings under Section 138, N.I. Act, invoking the power under Article 142 of the Constitution of India can be no reason at all for High Courts to pass an order quashing proceeding under Section 138, N.I. Act, on the similar lines as the power under Article 142 of the Constitution of India is available only to the Supreme Court of India. In this context it is relevant to refer to the three-Judge Bench of this Court in State of Punjab & Ors. v. Surinder Kumar & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any order which it thought fit in the interest of justice. Accordingly, we set aside the impugned order and allow the appeal, but in the circumstances without costs. 19. The upshot of the discussion is that the High Court had clearly fallen in error in invoking the power under Section 482, Cr.P.C., as also the power under Section 147, N.I. Act, to compound the offence under Section 138 of the N.I. Act qua the respondent-accused. Hence, the impugned judgment to the extent it compounded the offence under Section 138, N.I. Act invoking the inherent power under Section 482, Cr.P.C. and the power under Section 147, N.I. Act stands quashed and set aside. 20. However, the position is that the respondents have, by now, deposited an amount of Rs. 6,50,000/- along with 12% simple interest per annum from the date of cheque till the date of actual payment besides a sum of Rs. 1 lakh payable additionally, as ordered under the impugned judgment before the trial court. Therefore, the amount is available to be withdrawn by the appellant-complainant. 21. In view of the peculiar position thus obtained with respect to the deposit of the amount payable under the impugned judgment, the fact that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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