Accused convicted under Section 138 NI Act for a dishonoured Rs.5 lakh cheque; appellate court confirmed. During revision, parties compromised: accused paid Rs.4 lakh in cash with Rs.1 lakh deposited below. Relying on Damodar S. Prabhu and Section 147 NI Act, the High Court set aside the conviction, acquitted the accused, and allowed withdrawal of the deposit.
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Crl.RC.No.1254 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.08.2024
CORAM:
THE HON'BLE MR.JUSTICE M.DHANDAPANI
Crl.RC.No.1254 of 2022
Krishnan
...Petitioner
Vs.
...Respondents
Criminal Revision case filed under Section 397 r/w 401 of Cr.P.C. to call for the records in Crl.A.No.10 of 2021 on the file of III Additional Sessions Judge, Villupuam @ Kallakurichi confirming the conviction judgment dated 13.07.2021 passed in C.C.No.46 of 2017 on the file of Judicial Magistrate Fast Track Court (Magistrate Level) Kallakurichi and set aside the same.
For Petitioner : Mr.M.Subash
For Respondents : Mr.N.Manokaran
ORDER
This Criminal Revision Case has been filed seeking quashment of
the order dated 13.07.2021 passed in Crl.A.No.10 of 2021 on the file of
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theIII Additional Sessions Judge, Villupuam @ Kallakurichi, confirming the order passed in C.C.No.46 of 2017 on the file of the Judicial Magistrate Fast Track Court (Magistrate Level) Kallakurichi.
facto complainants. For the sake of convenience, the parties will be hereinafter referred to as 'accused' and 'complainant'.
Negotiable Instruments Act (in short 'the N.I. Act') in C.C.No.46 of 2017 before the learned Judicial Magistrate Fast Track Court, Kallakurichi against the accused stating that the accused borrowed a sum of Rs.5,00,000/- from the complainant for his family and business expenditure. In order to repay the liability, the accused had issued a cheque bearing No.000521 in favour of the first respondent on 17.10.2016 for a sum of Rs.5,00,000/- drawn on Central Bank of India at Kallakurichi Branch. When the said Cheques were presented for collection on 17.10.2016, the same was returned with an Endorsement
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'stopped by drawer'. Thereafter, the complainant issued legal notice to the accused on 24.10.2016 and i nspite the service of notice on the accused, he has neither come forward to repay the said amount nor sent any reply to the said notice. Further during the trial the complainant died after his evidence was recorded and subsequently the respondents were impleaded as parties.
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7. In the case of Damodar S. Prabhu Vs. Syed Babalal H., reported in [2010 (5) SCC 663] , the Full Bench of the Hon'ble Supreme Court has held that where the offences are essentially of a private nature and relatively not quite serious, the Code considers it expedient to recognise some of them as compoundable offencs and some others are compoundable only with the permission of the Court. In this regard, it is
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useful to extract hereunder paragraphs 16 and 17:
''16. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary [cited from : K.N.C. Pillai, R.V.Kelkar's Criminal Procedure, Fifth Edn. (Lucknow: Eastern Book Company, 2008) at p.444]
''17.2. Compounding of offences .-- A crime is essentially a wrong against the society and the State. Therefore any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. However, where the offences are essentially of a private nature and relatively not quite serious, the Code considers it expedient to recognise some of them as compoundable offences and some others as compoundable only with the permission of the Court.''
17. In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [cited from : Arun Mohan, some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act – Trackling an avalanche of cases (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009) at p.5]:
''...Unlike that for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest likes primarily in recovering the money rather than seeking the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there
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is little available as remedy for the holder of the cheque.''
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Kallakurichi, this Court is of the view that the Judgment in Crl.A.No.10 of 2021 on the file of the learned III Additional Sessions Judge, Villupuram @ Kallakurichi, is liable to be set aside.
10. Accordingly, the conviction and sentence imposed on the revision petitioner/accused in C.C.No.46 of 2017 on the file of the learned Judicial Fast Track Court, Kallakurichi which was confirmed in Criminal Appeal No.10 of 2021 by the learned III Additional Sessions Judge, Villupuram @ Kallakurichi is set aside and the revision petitioner/ accused is acquitted from all the charges levelled against him. The respondents are permitted to withdraw the sum of Rs.1,00,000/deposited by the petitioner before the appellate Court by filing an undertaking affidavit.
11. This Criminal Revision Case stands allowed accordingly.
02.08.2024
rap
Index : Yes/No Speaking order : Yes/No NCC : Yes/No
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M.DHANDAPANI, J.
rap
To
Crl.RC.No.1254 of 2022
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1 issue framed by the court
Whether a conviction under Section 138 NI Act could be compounded on compromise between the accused and complainants during revision.
Colour shows how this judgement treated each authority
Damodar S. Prabhu Vs. Syed Babalal H.Relied on¶7
[2010 (5) SCC 663] · Who else cites this
4 provisions across 2 enactments
Krishnan
Chellammal
Kanagam
Krishnamoorthy
M.Dhandapani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
