Mahesh Chandra Sharma, J. - (1.) This criminal revision petition has been filed under Section 397 CrPC read with Section 401 CrPC against the judgment and order dated 7.4.2011 passed by Special Judge (Fake Currency Cases) & Additional District Judge Jaipur Metro Jaipur in Criminal Appeal No. 152 of 2003 against the judgement and order dated 31.1.2003 of Judicial Magistrate , Jaipur City Jaipur in Criminal Case No. 112 of 2000 whereby the accused petitioner was convicted and sentenced under Section 138 Negotiable Instruments Act to suffer one year simple imprisonment with a fine of Rs. 2,000/- in default of payment of fine he was directed to further undergo 3 months simple imprisonment and further directed for payment of Rs. 80,000/- to the complainant as compensation and dismissed the appeal upholding the judgement and order dated 31.3.2003 of the Trial Court.
(2.) Brief facts of the case are that the non-petitioner No. 2 Rajkumar Sachdeva filed a complaint under Section 1.38 of the Negotiable Instruments Act before the Judicial Magistrate, Jaipur City, Jaipur on 14.6.2000 with the averments that complainant is known to the accused petitioner and having relations for transaction of money. It has further been alleged that the accused petitioner borrowed Rs. 15,000/- on 10.4.1999 and Rs. 50,000/- on 18.7.1999 total Rs. one lac from the complainant against which he has repaid Rs. 50,000/- on 15.12.1999 and remaining amount Rs. 85,000/- against which petitioner has issued two cheques, one cheque No. 300993 dated 22.2.2000 worth Rs. 45,000/- and another cheque No. 300994 dated 17.3.2000 worth Rs. 40,000/- in favour of complainant. The complainant has produced the cheque dated 22.2.2000 worth Rs. 45,000/- in the bank which was bounced on 23.3.2004. Thereafter he filed complaint. The Trial Court recorded the statement of complainant under Section 200 CrPC and took cognizance against him under Section 138 of Negotiable Instruments Act. On 16.12.2000 the Trial Court framed charged under Section 138 of the Negotiable Instruments Act against the accused petitioner, who denied the charge and prayed for trial. That non-petitioner No. 2 examined himself as PW 1 in support of his case and the petitioner himself appeared as DW 1. After hearing both the parties the Trial Court reached to the conclusion that cheques were issued by the petitioner and the same were dishonoured therefore he committed offence under Section 138 of the Negotiable Instruments Act. The Trial Court convicted and sentenced the accused petitioner under Section 138 of the Negotiable Instruments Act to undergo one year simple imprisonment and in default to further undergo 3 months simple imprisonment and also directed for payment of Rs. 80,000/- as compensation to the complainant vide its judgement and order dated 31.1.2003. The accused petitioner preferred appeal against the judgement of conviction and sentence before the Sessions Judge, who transferred the same for adjudication before the Special Judge (Fake Currency Cases) cum Additional Sessions Judge, Metro City, Jaipur. The appeal filed by the accused petitioner was rejected vide judgement dated 7.4.2011 upholding the judgement of the lower Court dated 31.1.2003.
(3.) The learned counsel for the accused petitioner at this stage has stated that the petitioner and the non-petitioner No. 2 have entered into compromise and hence the matter should be compounded in the light of the judgement of the Apex Court in K.M. Ibrahim v. K.P. Mohammed & Anr., (20)9) 7 Supreme 627 = 2010 (1) NU 1 (SC), in which following principles have been laid down : 7. Appearing for the appellant, Mr. Mukul Rohtagi, learned Senior Advocate, contended that since a specific power had been given to the parties to a proceeding under the Negotiable Instruments Act, 1881 under Section 147 to compound the offence, there could be no reason as to why the same cannot be permitted even after conviction, which had been affirmed upto the High Court. It was urged that in order to facilitate settlement of disputes, the legislature thought it fit to insert Section 147 by Amending Act 55 of 2002. Such amendment came into effect from 6th February, 2003, and provided that not with standing anything contained in the Code of Criminal Procedure, 1973, every offence punishable under the Act would be compoundable. Mr. Rohtagi urged that in view of the non-obstante clause, the provisions of Section 147 were given an overriding effect over the Code and in view of the clear mandate given to the parties to compound an offence under the Act, reference to Section 320 Code of Criminal Procedure, 1973 can be made for purposes of comparison only in order to understand the scope of Section 147 of the Negotiable Instruments Act, 1881. Mr. Rohtagi submitted that the said position had been accepted by this Court in various decisions, such as in the case of O.P. Dholakia v. State of Haryana & Anr., [(2000) 1 SCC 7621 = 2009 (1) NLJ 54 (SC)[NOC], wherein it was held that since the petitioner had already entered into a compromise with the complainant and the complainant had appeared through counsel and stated that the entire money had been received by him and he had no objection if the conviction already recorded under Section 138 of the Negotiable Instruments Act, 1881 is set aside, the Hon'ble Judges thought it appropriate to grant permission, in the peculiar facts and circumstances of the case, to compound the offence. While doing so, this Court also indicated that necessarily the conviction and sentence under Section 138 of the Act stood annulled. 7A. The said view has been consistently followed in the case of (1) Anil Kumar Haritwal & Anr v. Alka Gupta & Anr., [(2004) 4 SCC 366] = 2006 (1) NIJ 186 (SC); (2) B.C. Seshadri v. B.N. Suryanarayana Rao, [(2004) 11 SCC 510] = 2006 (1) NIJ 115 (SC); decided by a three Judgement (3) G. Sivarajan v. Little Flower Kuries & Enterprises Ltd. & Anr., [(2004) 11 SCC 400] = 2006 (1) NIJ 59 (SC); (4) Kishore Kumar v. J.K. Corporation Ltd., [(2004) 13 SCC 4941 = 2006 (1) NIJ 305 (SC); (5) Sailsh Shyam Parsekar v. Baban, [(2005) 4 SCC 162] = 2006 (1) NIJ 445 (SC); (6) K. Gyansagar v. Ganesh Gupta & Anr., [(2005) 7 SCC 54] = 2007 (1) NIJ 99 (SC); (7) KJ.B.L. Rama Reddy v. Annapurna Seeds & Anr., [(2005) 10 SCC 632] = 2006 (2) NIJ 432 (SC); (8) Sayed Ishaque Menon v. Ansari Naseer Ahmed, [(2005) 12 SCC 140] = 2006 (1) NIJ 292 (SC); (9) Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., 2008 (1) NIJ 278 (SC) = [(2008) 2 SCC 305], wherein some of the earlier decision have been noticed; and (10) Sudheer Kumar v. Manakkandi M.K. Kunhiraman & Anr., 2008 (1) NIJ 537 (Ker)(DB) _ [2008 (1) KLJ 203], which was a decision of a Division Bench of the Kerala High Court, wherein also the issue has been gone into in great detail. 8. The golden thread in all these decisions is that once a person is allowed to compound a case as provided for under Section 147 of the Negotiable Instruments Act, the conviction under Section 138 of the said Act should also be set aside. In the case of Vinay Devanna Nayak (supra), the issue was raised and after taking note of the provisions of Section 320 Code, this Court held that since the matter had been compromised between the parties and payments had been made in full and final settlement of the dues of the Bank, the appeal deserved to be allowed and the appellant was entitled to acquittal. Consequently, the order of conviction and sentence recorded by all the Courts were set aside and the appellant was acquitted of the charge levelled against him. 9. The object of Section 320 Code, which would not in the strict sense of the term apply to a proceeding under the Negotiable Instruments Act, 1881, gives the parties to the proceedings an opportunity to compound offences mentioned in the table contained in the said section, with or without the leave of the Court, and also vests the Court with jurisdiction to allow such compromise. By virtue of sub-section (8), the Legislature has taken one step further in vesting jurisdiction in the Court to also acquit the accused/convict of the offence on the same being allowed to be compounded. Inasmuch as, it is with a similar object in mind that Section 147 has I been inserted into the Negotiable Instruments Act, 1881, by amendment, an analogy may be drawn as to the intention of the Legislature as expressed in Section 320(8) Code, although, the same has not been expressly mentioned in the amended section to a proceeding under Section 147 of the aforesaid Act. 10. Apart from the above, this Court is further empowered under Article 142 of the Constitution to pass appropriate orders in line with sub-section (8) of Section 320 Code in an application under Section 147 of the aforesaid Act, in order to do justice to the parties. 11. As far as the non-obstante clause included in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of offences. The various decisions cited by Mr. Rohtagi on this issue does not add to the above position. 12. It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution. 13. Since the parties have settled their disputes, in keeping with the spirit of Section 147 of the Act, we allow the parties to compound the offence, set aside the judgement of the Courts below and acquit the appellant of the charges against him. 14. The appeal is, accordingly, allowed in the aforesaid terms.";