- (1.) This criminal revision petition has been filed under section 397 Cr.P.C. read with section 401 Cr.P.C. against the judgment and order dated 7.7.2011 passed by the Addl. Sessions Judge Rajgarh, District Alwar in Criminal Appeal No. 4 of 2008 against the judgment and order dated 23.1.2008 of Additional Chief Judicial Magistrate Rajgarh, District Alwar in Criminal Case No. 229 of 2003 whereby the accused petitioner was convicted and sentenced under section 138 Negotiable Instruments Act to suffer six months simple imprisonment with a fine of Rs. 1,05,000/- and in default of payment of fine he was directed to further under go two months simple imprisonment and dismissed the appeal upholding the judgment and order dated 23.1.2008 of the trial court.
(2.) Brief facts of the case are that the petitioner is father-in-law of complainant Manoj as daughter of petitioner Smt. Kavita married with complainant on 30.4.2002. Soon after the marriage complainant made harassment and cruelty with the daughter of petitioner and demanded dowry. In the marriage of elder daughter of petitioner cash of Rs. 1,05,000/- given to her by petitioner so as to complainant specifically demanded Rs. 1,05,000/- and deliberatelty did not send Kavita to petitioner's house. In these circumstances only to secure future of Kavita, petitioner handed over disputed cheque to complainant only for security and no legal debt was pending against the petitioner. The complainant non-petitioner No.2 did not send the daughter of the petitioner Kavita and misused the cheque given to him whereas looking to the conduct of complainant, petitioner stopped the payment of cheque. Complainant on dishonouring of cheque malafidely filed a complaint under section 138 of Negotiable Instruments Act, against the petiiner regarding dishonour of cheque No. 0032095 dated 15.10.2002 amounting to Rs. 1,05,000/-. The complainant in support of his complaint examined himself as PW.1 and also exhibited some documents. Thereafter statement of petitioner was recorded under section 313 Cr.P.C. in which the petitioner specifically denied the case of complainant and in defence petitioner examined himself as DW.2 and Dw.1 Bank Manager and exhibited some documents. The trial court after hearing both the parties but without considering appreciating the evidence on record convicted the petitioner vide judgment dated 23.1.2008. The petitioner aggrieved by the judgment of the trial court, preferred an appeal before the appellate court. The appellate court also without appreciating the evidence on record dismissed the appeal vide jdugment dated 7.7.2011. Dis-satisfied with the judgment dated 23.1.2008 and 7.7.2011 passed by the court blow, the accused petitioner filed this criminal revision.
(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 judgment of the Apex Court in K.M.Abrahim vs. K.P. Mohammed and another, 2009 7 Supreme 627, 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 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 notwithstanding 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 overridingeffect 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 Cr.P.C. can be made for purposes of comparison only in order to understand the scope of Section 147 of the Negotiable Instruments Act. 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 vs. State of Haryana & Anr., 2000 1 SCC 762], 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 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. vs. Alka Gupta & Anr., 2004 4 SCC 366]; (2) B.C. Seshadri vs. B.N. Suryanarayana Rao, 2004 11 SCC 510] decided by a three Judge Bench; (3) G. Sivarajan vs. Little Flower Kuries & Enterprises Ltd. & Anr., 2004 11 SCC 400]; (4) Kishore Kumar vs. J.K. Corporation Ltd., 2004 13 SCC 494]; (5) Sailesh Shyam Parsekar vs. Baban, 2005 4 SCC 162]; (6) K. Gyansagar vs. Ganesh Gupta & Anr., 2005 7 SCC 54]; (7) K.J.B.L. Rama Reddy vs. Annapurna Seeds & Anr., 2005 10 SCC 632]; (8) Sayeed Ishaque Menon vs. Ansari Naseer Ahmed, 2005 12 SCC 140]; (9) Vinay Devanna Nayak vs. Ryot Sewa Sahakari Bank Ltd., 2008 2 SCC 305], wherein some of the earlier decisions have been noticed; and (10) Sudheer Kumar vs. Manakkandi M.K. Kunhiraman & Anr., 2008 1 KerLJ 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, the issue was raised and after taking note of the provisions of Section 320 Cr.P.C., 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 leveled against him. 9. The object of Section 320 Cr.P.C., 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 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) Cr.P.C., 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 Cr.P.C. 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 judgment of the courts below and acquit the appellant of the charges against him. 14. The appeal is, accordingly, allowed in the aforesaid terms. ;