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TMI Blog2025 (2) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... for two months. The conviction and sentence imposed by the trial court was also confirmed by the First Appellate Court. 4. The facts leading to filing of this Civil Revision Petition is as follows: (1) The Revision Petitioner borrowed a sum of Rs.1,25,000/- on 21.10.2014 from the respondent/complainant and agreed to pay the same with interest at the rate of 18% per annum. Since the revision petitioner failed to repay the interest and principal amount, the respondent demanded to pay the amount. (ii) In order to repay the loan amount, he issued a cheque for a sum of Rs.1,75,000/- on 15.02.2017 bearing cheque No.208646 drawn at State Bank of Travancore, Odanthurai Branch, Mettupalayam in favour of the respondent and when it was presented for encashment through his Bankers namely Bank of Baroda, Saibaba Colony Branch, Coimbatore, the same was returned with an endorsement "Funds Insufficient', vide return memo dated 16.02.2017. (iii) Inspite of repeated demands, since the revision petitioner did not pay the cheque amount, the respondent issued a legal notice dated 27.02.2017 an on receipt of the same, the revision petitioner issued a reply dated 08.03.2017. (iv) As the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evision Petitioner submits that pending Criminal Revision, both the parties have arrived at a settlement and to that effect, the Criminal Revision case shall be settled in terms of settlement arrived at between the parties. 11. Learned counsel for the Revision Petitioner submits that pending Criminal Revision, both the parties have entered into a settlement, pursuant to which, the entire disputed cheque amount was handed over to the counsel for the respondent today before the court. 12. Learned counsel for the Revision Petitioner further submits that in terms of settlement arrived between the parties, a Demand Draft in favour of the respondent for Rs.1,75,000/- being the disputed cheque amount has been handed over to the learned counsel for the respondent Mr.K. Selvakumar today in the court and Mr.K.Selvakumar also has acknowledged the receipt of the Demand Draft on the Demand Draft which is taken on record. He submitted that the entire cheque amount has been handed over vide original Demand Draft No.9110301, dated 22.01.2025 today in the court and receipt of the same was also admitted by the respondent counsel by making endorsement on the demand draft itself. He submitted that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases. (v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances'. 17. Learned counsel for the Revision Petitioner further has relied upon the judgment of Gujarat High Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, has vehemently opposed the submissions made by the learned counsel for the Revision Petitioner and submits that the Revision Petitioner has already been convicted by the learned trial court and the conviction order had already been upheld by the Appellate Court in the appeal. 21. The learned Govt. Advocate (crl.side) also further submitted that the appeal has been rejected on merit and the Revision Petitioner was convicted, then where the parties or any one of them can be permitted to place compromise and to get the order of acquittal from the Court is the question. He further submitted that the present case is nothing, but a gross misuse of the process of law and thus sentence cannot be compounded on the basis of compromise as filed by the parties. 22. I have heard the learned counsel for the Revision Petitioner, learned counsel for the respondent and learned Govt. Advocate (crl.side) appearing for the State and perused the materials placed on record. 23. Considering the facts as narrated above, the following question arose for consideration. 'Whether the order passed by the Appellate Court confirming the conviction of the trial court under section 138 of Negotiable I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. 9) No offence shall be compounded except as provided by this section. Section 147 of the Negotiable Instrument Act :' "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable." 25. It is well settled that inherent power of the Court can be exercised only when no other remedy is available to the litigants and nor a specific remedy as 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, especially when the Revision Petitioner may not have availed of that remedy. The power can be exercised by the High Court to secure the 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 or Act, depending upon the facts of the given case. This Court can always take note of any miscarriage of justice and prevent the same by exercising its power. These powers are neither limited, nor curt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings is an exception than a rule. The inherent powers of the High Court itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists. 32. For adjudicating the instant case, the facts as stated hereinabove are very relevant. Here, the Revision Petitioner has attempted to invoke the jurisdiction of this court. 33. I am not in agreement that when the adjudication of a criminal offence has reached to the state of revisional level, there cannot be any compromise without permission of the court in all case including the offence punishable under 'N.I. Act' or the offence mentioned in Table-1 (one) can be compounded only if High Court or Court of Sessions grants permission for such purpose. The Court presently, concerned with an offence punishable under 'N.I. Act'. 34. It is evident that the permissibility of the compounding of an offence is linked t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue 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 provisions of clause (b) of Section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under Section 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, but, where this is not so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permissible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. This view will, in our opinion, give proper effect to the nonobstante clause in clause (b) with due regard to its other provision that the letting value should be "reasonable" 36. The expression 'special law' means a provision of law, which is not applicable generally but which applies to a particular or specific subject or class of subjects. Section 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even beyond that stage, the nature and character of the offence would not change automatically and it would be wrong to hold that at revisional stage, the nature of offence punishable under Section 138 of the N.I. Act should be treated as if the same is falling under table-II of Section 320 IPC. I would like to reproduce some part of the statement of objects and reasons of the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002 "The Negotiable Instrument Act 1881 was amended by the Banking,Public Financial Institutions and Negotiable Instrument Laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penalties in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instrument Act, 1981, namely Section 138 to 142 in ChapterXVII have been found deficient in dealing with dishonour of cheques. Notonly the punishment provided in the Act has proved to be inadequate, theprocedure prescribed for the courts to deal with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch should be given priority over the punitive aspect. 42. So the intention of the legislature and object of enacting "Banking", Public Financial Institutions and the Negotiable Instrument Laws (Amended Act) 1988 and subsequent enactment, i.e., Negotiable Instruments (Amendment & Miscellaneous Provisions Act 2002 leads this Court to a conclusion that the offence made punishable under Section 138 of N.I. Act is not only an offence qua property but it is also of the nature of an economic offence, though not covered in the list of statutes enacted in reference to Section 468 of Cr.P.C. Thus, the parties, in reference to offence under Section 138 N.I. Act read with Section 147 of the said Act are at liberty to compound the matter at any stage even after the dismissal of the proceedings. 43. In the instant case, the problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute, furthermore, the arguments on behalf of the Govt. Advocate (crl.side) on the fact that unlike Section 320 Cr.P.C., Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of in terms of compromise arrived at between the parties to this litigation out of Court. The impugned conviction and sentence passed in C.A.No.211 of 2020, dated 20.10.2021 by the learned III Addl. District Sessions Judge, Coimbatore, confirming the conviction and sentence made in C.C.No.315 of 2018, dated 01.10.2020 by the learned Judicial Magistrate, FTC No.1 @ ML, Coimbatore are hereby modified. The conviction and sentence under section 138 of the Negotiable Instruments Act in C.C.No.366 of 2013 stands anulled as this Court intends, otherwise to secure the ends of justice. The Revision Petitioner shall be treated as acquitted on account of compounding of the offence with the complainant/person affected. 50. While disposing of this Criminal Revision Case by recording the settlement arrived between the parties, the learned counsel for the Revision Petitioner submitted that earlier, this Court, by order dated 25.01.2021 in Crl.M.P.No.14031 of 2021 in Crl.R.C.No.1095 of 2021, granted suspension of sentence to the Revision Petitioner on condition that he shall deposit 35,000/- before the trial court and accordingly, the revision petitioner deposited Rs.35,000/- before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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