- (1.) THIS is petition under Section 482 Cr.P.C. against the order dated 4.8.2012 passed by Sessions Judge, Jodhpur Metropolitan in Criminal Appeal No.22/2010, vide which, the appellate court refused to accept the compromise arrived at between the petitioner and the respondent No.2 for the offence under Section 138 of the Negotiable Instruments Act, 1881. The petitioner has been convicted for the offence under Section 138 of the N.I. Act by Additional Chief Judicial Magistrate No.4, Jodhpur Metropolitan on 13.12.2011 in Criminal Case No.470/2010. It has been alleged that respondent No.2 filed a private complaint against the petitioner stating therein that family members of the petitioner obtained a loan from it and various documents were executed in respect of this loan by late father of the petitioner, Madan Lal Joshi and it was alleged that the petitioner gave a cheque for Rs.22,37,000/- for the various outstanding amounts against his family members and the said cheque was dishonoured.
(2.) THE said conviction of the petitioner was challenged before the court of Sessions Judge, Jodhpur by filing an appeal and on the first day of filing the appeal, both the parties viz. petitioner and respondent No.2 submitted a joint application Annexure-2 before the appellate court, in which, it was mentioned that the respondent No.2 has obtained the outstanding amounts from the petitioner and nothing remains to be recovered now from him and the respondent No.2 does not want to continue any proceedings against the petitioner. However, the appellate court after hearing arguments on the joint compromise application dated 11.1.2012 directed the petitioners, before accepting the compromise, to deposit 15% of the cheque amount in the account of District Legal Services Authority in view of the judgment rendered by Hon'ble Apex Court in the case of Damodar S. Prabhu Vs. Sayed Babalal H. Accordingly, the application was dismissed. Aggrieved thereby, the present petition has been filed under Section 482 of the Cr.P.C. The respondent No.2 has put in appearance through his counsel Shri Kapil Bohra and has filed an affidavit of Shri Sushil Kuarm Harsh, who is the Manager and Power of Attorney Holder of respondent No.2-Pustikak Laghu Vyapari Partisthan Bachat & Sakh Sahakari Samiti Ltd., Jodhpur. The same is taken on record. As per the said affidavit, the matter has been compromised and the respondent No.2 has no objection if the proceedings under Section 138 of the N.I. Act is dropped against the petitioner and is acquitted from the said charges. Thus, this Court has no doubt that the matter has been compromised and the said compromise has been arrived at between the parties at their own free will and without any pressure. As such, the compromise is genuine. Section 147 of the N.I. Act reads as under: "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. Thus, the said offence is compoundable. The judgment rendered by the Hon'ble Apex Court in the case of Damodar S. Prabhu (supra) lays down guidelines. The said guidelines are not mandatory. Moreover, the said judgment has been passed to encourage compromise and not to discourage the same. Each case depends on its own facts. It is stated by learned counsel for the petitioner that the liability towards dishonored cheque is of the father of the present petitioner. However, his father Madan Lal has died. The petitioner is unemployed and somehow he has managed to collect the amount to pay to the respondent. Taking into account the financial position of the petitioner and taking into account the fact that he is unemployed as show by learned counsel for the petitioner, this Court is of the opinion that the said requirement to deposit the penalty can be waived. Accordingly , the criminal misc. petition is allowed. The order dated 4.8.2012 passed by the Sessions Judge, Jodhpur Metropolitan in Criminal Appeal No.22/2010 is set aside and the matter is remanded back to the appellate court with a direction to decide the appeal in terms of the compromise and observation of this Court as above.;