Natarajan Vs Mani @ Sundharamoorthy

Prayer : Criminal Revision Petition filed under section 397 r/w. 401 of Cr.P.C., to call for the records in relation to the judgment dated 21.12.2021 passed by the III Additional Sessions Judge, Villupuram at Kallakurichi in C.A.No.7 of 2020, by confirming the judgment of conviction and sentence passed by the Judicial Magistrate, Fast Track Court, Kallakurichi, dated 30.01.2020 in C.C.No.42/2019, set aside the same.

¶10

For Petitioner ... Mr.S.Deepak for Mr.S.Senthil For Respondent .... Mr.K. Dhananjayan

¶11

ORDER

¶12

Heard Mr.S. Deepak, learned counsel appearing for the Revision Petitioner and Mr.K.Dhananjayan, learned counsel appearing for the

¶13

1/34 https://www.mhc.tn.gov.in/judis

¶14

Crl.R.C.No.578/2022

¶15

respondent and also this Court has taken the assistance of Mr.A.Gopinath, learned Govt. Advocate (crl.side).

¶16

The instant Criminal Revision Case has been filed challenging the conviction and sentence passed in C.A.No.7 of 2020 dated 21.12.2021 by the learned III Additional Sessions Judge, Villupuram at Kallakurichi, confirming the conviction and sentence made in C.C.No.42 of 2019, dated 30.01.2020 passed by the learned Judicial Magistrate Fast Track Court, Kallakurichi.

¶17

The learned trial Judge has convicted the Revision

¶18

Petitioner/accused under section 138 of Negotiable Instruments Act and sentenced him to undergo SI for a period of one year and also directed him to pay a compensation of Rs.20,00,000/- within two months from the date of judgment, in default, to undergo SI for three months. The conviction and sentence imposed by the trial court was also confirmed by the First Appellate Court.

¶19

The facts of the case in brief are as follows;

¶20

(i) The Revision Petitioner/accused borrowed a sum of Rs.20,00,000/-

¶21

2/34 https://www.mhc.tn.gov.in/judis

¶22

Crl.R.C.No.578/2022

¶23

as a hand loan from the respondent/ complainant on 17.12.2025 and issued a

¶24

post-dated cheque on 10.12.2018 in favour of the respondent drawn on Axis Bank, Attur Branch, bearing Cheque No.050755 for a sum of Rs.20,00,000/-

¶25

(ii) When the respondent presented the said cheque for encashment through his Bankers viz., Lakshmi Vilas Bank, Chinna Salem on 13.12.2018, the same was returned as unpaid on 14.12.2018 with an endorsement memo 'Drawers Signature Differs'.

¶26

(iii) Therefore, the respondent sent a legal notice to the Revision Petitioner on 09.01.2019 and the same was received by him on 14.01.2019.

¶27

Inspite of receipt of notice, the Revision Petitioner neither issued any reply, nor settled the cheque amount. Hence, the respondent preferred a complaint against the Revision Petitioner before the Judicial Magistrate, Fast Track Court, Kallakurichi in C.C.No.42 of 2019 under section 138 of the Negotiable Instruments Act.

¶28

(iv) After recording the sworn statement of the respondent and after being satisfied that prima facie case has been made out to proceed further against the Revision Petitioner for the offence under section 138 of NI Act, the trial Court has issued summon to the Revision Petitioner. On the appearance of the Revision Petitioner, copies have been furnished and the

¶29

3/34 https://www.mhc.tn.gov.in/judis

¶30

Crl.R.C.No.578/2022

¶31

substance of allegation has been put to him. The Revision Petitioner has denied the allegation and has claimed to be tried.

¶32

(v) After considering the arguments, the learned trial court has found

¶33

the Revision Petitioner guilty of the offence under section 138 of the Negotiable Instruments.

¶34

(vi) The learned trial court sentenced him to undergo Simple Imprisonment for a period of one year and to pay a compensation of Rs.20,00,000/- to the respondent within two months from the date of judgment and in default, to undergo a sentence of Simple Imprisonment of three months.

¶35

(vii) Aggrieved by the judgment of the trial court, the Revision Petitioner has preferred the appeal before the III Addl. Sessions Judge, Villupuram @ Kallakurichi in Crl.A.No.7 of 2020 and the First Appellate Court, by its judgment dated 21.12.2021, confirmed the conviction and sentence imposed by the trial court and directed the trial court to secure the Revision Petitioner/accused to undergo the sentence as per law.

¶36

(viii) Challenging the concurrent judgments rendered by both the courts below, the present Criminal Revision Case has been preferred by the Revision Petitioner.

¶37

4/34 https://www.mhc.tn.gov.in/judis

¶38

Crl.R.C.No.578/2022

¶39

During the pendency of the present Criminal Revision, the parties

¶40

have entered into a Memorandum of Compromise dated 17.10.2022, which is taken on record and as per the terms of the Compromise, the following conditions were laid down between the parties which are quoted as under;

¶41

JOINT COMPROMISE MEMO FILED BY THE PETITIONER AND RESPONDENT

¶42

' 1. It is submitted that the Respondent filed a case against the Petitioner before the learned Judicial Magistrate Fast Track Court, Kallakurichi in C.C.No.42 of 2019 for offence punishable u/s.138 of NI Act. The Hon'ble Trial Court after full-fledged trial, convicted the Petitioner u/s.138 of NI Act and sentencing him to undergo one year Simple Imprisonment and to pay a sum of Rs.20,00,000/- as compensation to the Respondent, in default, Simple Imprisonment for three months vide its judgment dated 30.01.2020. Against which the petitioner preferred appeal before the Additional Sessions Judge, Villupuram at Kallakurichi in C.A.No.7 of 2020 and after hearing the arguments the said Appellate Court by its order dated 21.12.2021 confirmed the Judgment and Sentence passed by the learned Judicial Magistrae. The Petitioner aggrieved over the same the present Revision has been preferred by the petitioner before this Hon'ble Court which is pending before this Hon'ble Court.

¶43

2. It is humbly submitted that, during the pendency of the present Revision Petition, amicable settlement was reached between the petitioner and the respondent for a sum of Rs.19,00,000/- and the said settlement amount has been paid by the Petitioner to the Respondent on 11.10.2022. Based on this, the Petitioner and Respondent are filing this compromise memo to allow the above Crl.R.C.578 of 2022.

¶44

3. It is submitted that, the case is amicably settled between the parties and no further claim of money or any further

¶45

5/34 https://www.mhc.tn.gov.in/judis

¶46

Crl.R.C.No.578/2022

¶47

proceedings will not be taken by the parties relating to this subject issue.

¶48

4. It is submitted that the above joint memo has been voluntarily filed by both the parties, without any coercion or compulsion whatsoever. We both agree to be bound by the orders of this Hon'ble Court, in the light of this compromise memo.'

¶49

It is therefore prayed tht this Hon'ble Court may record the above joint compromise memo and dispose the above Crl.R.C.No.578 of 2022 and thus render justice.'

¶50

Learned counsel for the Revision Petitioner submits that pending Criminal Revision, both the parties have entered into a Joint Compromise Memo, dated 17.10.2022 to the effect that the Criminal Revision case shall be settled in accordance with the terms and conditions as contained therein.

¶51

Learned counsel for the Revision Petitioner further submits that in terms of Joint Compromise Memo, dated 17.10.2022, amicable settlement was reached between the petitioner and the respondent for a sum of Rs.19,00,000/- and the said amount has also been paid by the petitioner to the respondent on 11.10.2022 and thus, no amount is due against the Revision Petitioner.

¶52

6/34 https://www.mhc.tn.gov.in/judis

¶53

Crl.R.C.No.578/2022

¶54

Mr.K. Dhananjayan, the learned counsel for the respondent submits

¶55

that as per Joint Compromise Memo dated 17.10.2022, his client has already received the settlement amount of Rs.19,00,000/- on 11.10.2022 and no amount is due against the Revision Petitioner.

¶56

Learned counsel for the Revision Petitioner further submits that the

¶57

present Revision has been filed on 21.04.2022 before this Court and on the basis of change in circumstances, as the parties have entered into Joint Compromise Memo, it was prayed to this Court to compound the offence. It was further argued by the learned counsel for the Revision Petitioner that this Court has inherent powers to compound the offence, so that, the ends of justice could be secured as the object of Negotiable Instruments Act is primarily compensatory and not punitive and moreover Section 147 of NI Act would have an overriding effect on section 320 Cr.P.C. Irrespective of which stage, the parties are compromising with the kind leave of this Hon'ble Court.

¶58

In support of his arguments, learned counsel for the Revision Petitioner has submitted that in the case of Damodar S. Prabhu vs. Sayed

¶59

Babalal H reported at 2010 (2) SCC (Cri) 1328 , the Hon'ble Apex Court had

¶60

7/34 https://www.mhc.tn.gov.in/judis

¶61

Crl.R.C.No.578/2022

¶62

formulatedthe guidelines for compounding the offence under section 138 N.I.

¶63

Act wherein in para 21, it was pleased to observe as under :

¶64

"With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since 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

¶65

followed:-

¶66

THE GUIDELINES

¶67

(i) In the circumstances, it is proposed as follows:

¶68

(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.

¶69

(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 Authority, or such authority as the Court deems fit.

¶70

(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.

¶71

8/34 https://www.mhc.tn.gov.in/judis

¶72

Crl.R.C.No.578/2022

¶73

(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount."

¶74

Learned counsel for the Revision petitioner also submitted that in

¶75

the case of M/s Meters and Instruments Private Limited and another vs.

¶76

Kanchan Mehta reported at 2017 (7) Supreme 558, the Hon'ble the Apex

¶77

Court in para 18, was pleased to observe as under :

¶78

i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.

¶79

(ii)The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.

¶80

(iii)Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests

¶81

9/34 https://www.mhc.tn.gov.in/judis

¶82

Crl.R.C.No.578/2022

¶83

of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.

¶84

(iv)Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award 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.

¶85

(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'.

¶86

Learned counsel for the Revision Petitioner further has relied upon

¶87

the judgment of Gujarat High Court in the case of Kripal Singh Pratap

¶88

10/34 https://www.mhc.tn.gov.in/judis

¶89

Crl.R.C.No.578/2022

¶90

Singh Ori vs. Salvinder Kaur Hardip Singh reported at 2004 Crl. L. J. 3786

¶91

wherein, the Gujarat High Court was pleased to observe as under:-

¶92

31. In the circumstances, it is hereby declared that the compromise arrived between the parties to this litigation out of court is accepted as genuine and the order of conviction and sentence passed by the learned JMFC, Vadodara and confirmed in appeal by the learned Sessions Judge, Fast Track Court, Vadodara, therefore, on the given set of facts are hereby quashed and set aside as this court intends, otherwise to secure the ends of justice as provided under section 482 Cr.P.C. Obviously the order disposing Revision Application would not have any enforceable effect."

¶93

Learned counsel for the Revision Petitioner has also relied upon

¶94

the judgment of Hon'ble the Apex Court in the case of Vinay Devanna

¶95

Nayak vs. Ryot Seva Sahkari Bank Limited reported at AIR 2008 SC 716

¶96

wherein the Hon'ble Apex Court was pleased to observe as under :

¶97

"18. Taking into consideration even the said provision (Section 147) and the primary object underlying Section 138, in our judgment, there is no reason to refuse compromise between the parties. We, therefore, dispose of the appeal on the basis of the settlement arrived at between the appellant and the respondent.

¶98

19. For the foregoing reasons the appeal deserves to be allowed and is accordingly allowed by holding that since the matter has been compromised between the parties and the amount of Rs.45,000/- has been paid by the appellant towards full and final settlement to the respondent-bank towards its dues, the appellant is entitled to acquittal.

¶99

11/34 https://www.mhc.tn.gov.in/judis

¶100

Crl.R.C.No.578/2022

¶101

The order of conviction and sentence recorded by all courts is set aside and he is acquitted of the charge levelled against him."

¶102

Learned counsel for the Revision Petitioner has argued that the

¶103

law regarding compounding of offences under the N.I. Act is very clear and is no more resintegra and the offences under the N.I. Act can be compounded even at anystage of the proceedings. He submits that in terms of the aforesaid law laid down by the Hon'ble Supreme Court, the parties may be permitted to compound the offence and the conviction of the petitioner be set aside.

¶104

Per contra, Mr.A.Gopinath, the learned Govt. Advocate (crl.side) who appeared for the State and assisted this Court in the matter, 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.

¶105

The learned Govt. Advocate (crl.side) also further submitted that

¶106

the appeal has been rejected on merit and the Revision Petitioner was convicted, then whether the parties or any one of them can be permitted to

¶107

12/34 https://www.mhc.tn.gov.in/judis

¶108

Crl.R.C.No.578/2022

¶109

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.

¶110

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.

¶111

Considering the facts as narrated above, the following question

¶112

arose for consideration.

¶113

'Whether the order passed by the Appellate Court confirming the conviction of the trial court under section 138 of Negotiable Instruments Act can be nullified by the High Court on the basis of compromise entered between the parties'

¶114

Before answering the aforesaid question as framed, I shall

¶115

examine the relevant provision of the Cr.P.C., as well as the Negotiable Instrument Act. I may extract Section 320 of Cr.P.C., and section 147 of Negotiable Instruments Act.

¶116

13/34 https://www.mhc.tn.gov.in/judis

¶117

Crl.R.C.No.578/2022

¶118

Section 320 Cr.P.C. - Compounding of Offences -

¶119

1) The offences punishable under the sections of the Indian Penal Code (45 of 1860), specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table -

¶120

2) The offences punishable under the Sections of the Indian Penal Code (45 of 1860), specified in the first two columns of the Table next following may, with the permission of the Court before which any prosecution for such offence is pending be compounded by the persons mentioned in the third column of that Table -

¶121

3) When any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner.

¶122

4) (a) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may, with the permission of the Court, compound such offence.

¶123

(b) When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908 (5 of 1908) of such person may, with the consent of the Court, compound such offence.

¶124

5) When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or as the case may be, before which the appeal is to be heard.

¶125

6) A High Court or Court of Session acting in the exercise of its powers of revision under Section 401 may allow any

¶126

14/34 https://www.mhc.tn.gov.in/judis

¶127

Crl.R.C.No.578/2022

¶128

person to compound any offence which such person is competent to compound under this section.

¶129

7) No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence.

¶130

8) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.

¶131

9) No offence shall be compounded except as provided by this section.

¶132

Section 147 of the Negotiable Instrument Act :’

¶133

"Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable."

¶134

I have to refer the Joint Compromise Memo dated 17.10.2022 filed

¶135

by both parties which is on the record for proper adjudication :-

¶136

JOINT COMPROMISE MEMO FILED BY THE PETITIONER AND RESPONDENT

¶137

' 1. It is submitted that the Respondent filed a case against the Petitioner before the learned Judicial Magistrate Fast Track Court, Kallakurichi in C.C.No.42 of 2019 for offence punishable u/s.138 of NI Act. The Hon'ble Trial Court after

¶138

15/34 https://www.mhc.tn.gov.in/judis

¶139

Crl.R.C.No.578/2022

¶140

full-fledged trial, convicted the Petitioner u/s.138 of NI Act and sentencing him to undergo one year Simple Imprisonment and to pay a sum of Rs.20,00,000/- as compensation to the Respondent, in default, Simple Imprisonment for three months vide its judgment dated 30.01.2020. Against which the petitioner preferred appeal before the Additional Sessions Judge, Villupuram at Kallakurichi in C.A.No.7 of 2020 and after hearing the arguments the said Appellate Court by its order dated 21.12.2021 confirmed the Judgment and Sentence passed by the learned Judicial Magistrae. The Petitioner aggrieved over the same the present Revision has been preferred by the petitioner before this Hon'ble Court which is pending before this Hon'ble Court.

¶141

It is humbly submitted that, during the pendency of the present Revision Petition, amicable settlement was reached between the petitioner and the respondent for a sum of Rs.19,00,000/- and the said settlement amount has been paid by the Petitioner to the Respondent on 11.10.2022. Based on this, the Petitioner and Respondent are filing this compromise memo to allow the above Crl.R.C.578 of 2022.

¶142

It is submitted that, the case is amicably settled between the parties and no further claim of money or any further proceedings will not be taken by the parties relating to this subject issue.

¶143

It is submitted that the above joint memo has been voluntarily filed by both the parties, without any coercion or compulsion whatsoever. We both agree to be bound by the orders of this Hon'ble Court, in the light of this compromise memo.'

¶144

It is therefore prayed tht this Hon'ble Court may record the above joint compromise memo and dispose the above Crl.R.C.No.578 of 2022 and thus render justice.'

¶145

16/34 https://www.mhc.tn.gov.in/judis

¶146

Crl.R.C.No.578/2022

¶147

It is well settled that inherent power of the Court can be exercised

¶148

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 curtailed by any other provision of the Code or Act. However, such inherent powers are to be exercised sparingly and with caution

¶149

In the instant case, it is true that the appeal was dismissed and the conviction and sentence was upheld by the appellate court, but it cannot be lost sight of the fact that this Court has power to intervene in exercise of its power only with a view to do the substantial justice or to avoid a miscarriage and the spirit of compromise arrived at between the parties. This is perfectly justified and legal too.

¶150

17/34 https://www.mhc.tn.gov.in/judis

¶151

Crl.R.C.No.578/2022

¶152

I have considered the judgments cited by the learned counsel for the Revision Petitioner as well as by the learned Counsel for the State and other decisions of the Hon'ble Apex Court and I do not think it necessary to enlist those decisions which are taken into consideration for the purpose of the present proceedings.

¶153

In the instant case, the Revision Petitioner is invoking the inherent power of this court after dismissal of the appeal confirming his conviction and sentence. In these circumstances, I have to examine as to whether for entertaining the aforesaid case, any special circumstances are made out or not, so it can be legitimately argued and inferred and held that in all cases where the Revision Petitioner is able to satsify this Court that there are special circumstances which can be clearly spelt out subequent proceeding invoking inherent power of this court can be modified and cannot be thrown away on that technical argument as to its sustainability once the contesting parties entered into subsequent compromise.

¶154

In the case of Krishan Vs. Krishnaveni , reported in (1997) 4 SCC

¶155

241 , Hon'ble the Apex Court has held that though the inherent power of the

¶156

18/34 https://www.mhc.tn.gov.in/judis

¶157

Crl.R.C.No.578/2022

¶158

High Court is very wide, yet the same must be exercised sparingly and cautiously particularly in a case where the applicant is shown to have already invoked the revisional jurisdiction under section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may in its discretion prevent the abuse of process or miscarriage of justice by exercising its power.

¶159

In the case of S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168 , it has been held by the Hon'ble Apex Court that quashing of the criminal 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.

¶160

For adjudicating the instant case, the facts as stated hereinabove are very relevant. Here, the Revision Petitioner has attempted to invoke the

¶161

19/34 https://www.mhc.tn.gov.in/judis

¶162

Crl.R.C.No.578/2022

¶163

jurisdiction of this court.

¶164

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 under section 320 of Cr.P.C., 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'.

¶165

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 I can refer to the following extracts from an academic commentary [Cited from : K.N.C. Pillai, R.V. Kelkar's Criminal Procedure, 5th Edition :

¶166

"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

¶167

20/34 https://www.mhc.tn.gov.in/judis

¶168

Crl.R.C.No.578/2022

¶169

essentially of a private nature and relatively not quite serious, the Code considers it expedient to recognize some of them as compoundable offences and some others as compoundable only with the permission of the court…"

¶170

30. Section 147 of NI Act begins with a non obstante clause and such clause is being used in a provision to communicate that the provision shall prevail despite anything to the contrary in any other or different legal provisions. So, in light of the compass provided, a dispute in the nature of complaint under section 138 of N.I. Act, can be settled by way of compromise irrespective of any other legislation including Cr.P.C. In general and section 320 (1)(2) or (6) of the Cr.P.C. in particular. The scheme of section 320 Cr.P.C. deals mainly with procedural aspects; but it simultaneously crystallizes certain enforceable rights and obligation. Hence, this provision has an element of substantive

¶171

legislation and therefore, it can be said that the scheme of section 320 does not lay down only procedure; but still, the status of the scheme remains under a general law of procedure and as per the accepted proposition of law, the special law would prevail over general law. For the sake of convenience, I would like to quote the observations of

¶172

21/34 https://www.mhc.tn.gov.in/judis

¶173

Crl.R.C.No.578/2022

¶174

Hon'ble the Apex Court in the case of Municipal Corporation, Indore vs.

¶175

Ratnaprabha reported in (AIR 1977 SC 308) which reads as under :

¶176

"As has been stated, clause (b) of section 138 of the Act provides that the annual value of any building shall "notwithstanding anything contained in any other law for the time being in force" be deemed to be the gross annual rent for which the building might "reasonably at the time of the assessment be expected to be let from year to year" While therefore, the requirement of the law is that the reasonable letting value should determine the annual value 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"

¶177

The expression 'special law' means a provision of law, which is not

¶178

applicable generally but which applies to a particular or specific subject or class of subjects. Section 41 of Indian Penal Code stands on the same footing

¶179

22/34 https://www.mhc.tn.gov.in/judis

¶180

Crl.R.C.No.578/2022

¶181

and defines the phrase special law. In this connection I would like to quote

¶182

the well accepted proposition of law emerging from various observations made by the Hon'ble Apex Court in different decisions as a gist of the principle and it can be summarised as under:

¶183

"When a special law or a statute is applicable to a particular subject, then the same would prevail over a general law with regard to the very subject, is the accepted principle in the field of interpretation of statute."

¶184

32 . In reference to offence under section 138 of N.I. Act read with

¶185

section 147 of the said Act, the parties are at liberty to compound the matter at any stage even after the dismissal of the revision/appeal. Even a convict undergoing imprisonment with the liability to pay the amount of fine imposed by the court and/or under an obligation to pay the amount of compensation if awarded, as per the scheme of N.I. Act, can compound the matter. The complainant i.e. person or persons affected can pray to the court that the accused, on compounding of the offence may be released by invoking jurisdiction of this court. If the parties are asked to approach the Apex Court then, what will be situation, is a question which is required to be considered in the background of another accepted progressive and pragmatic principle accepted by our

¶186

23/34 https://www.mhc.tn.gov.in/judis

¶187

Crl.R.C.No.578/2022

¶188

courts that if possible, the parties should be provided justice at the door

¶189

step. The phrase "justice at the door step" has taken the court to think and reach to a conclusion that it can be considered and looked into as one of such special circumstances for the purpose of compounding the offence under section 147 of the N. I. Act.

¶190

It is also well settled that the operation or effect of a general Act may be curtailed by special Act even if a general Act contains a non obstante clause. But here is not a case where the language of section 320 Cr.P.C. would come in the way in recording the compromise or in compounding the offence punishable under section 138 of the N.I. Act. On the contrary provisions of section 147 of N.I. Act though starts with a non obstante clause, is an affirmative enactment and this is possible to infer from the scheme that has overriding effect on the intention of legislature reflected in section 320 Cr.P.C.

¶191

Merely because the litigation has reached to a revisional stage or 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

¶192

24/34 https://www.mhc.tn.gov.in/judis

¶193

Crl.R.C.No.578/2022

¶194

treated as if the same is falling under table-II of Section 320 IPC. I would

¶195

like to reproduce some part of the statement of objects and reasons of the

¶196

Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002

¶197

"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 such matters has beenfound to be cumbersome. The Courts are unable to dispose of such casesexpeditiously in a time bound manner in view of the procedure contained in the Act.

¶198

2. A large number of cases are reported to be pending under Sections 138 and 142 of the Negotiable Instruments Act in various courts in the country. Keeping in view the large number of complaints under the saidAct, pending in various courts, a Working Group was constituted to review Section 138 of the Negotiable Instruments Act, 181 and make recommendations as to what changes were needed to effectively achieve the purpose of that Section.

¶199

3. ..........…

¶200

4. Keeping in view the recommendations of the Standing Committee on finance and other R/SCR.A/2491/2018 ORDER representations,

¶201

25/34 https://www.mhc.tn.gov.in/judis

¶202

Crl.R.C.No.578/2022

¶203

it has

¶204

been decided to bring out, inter alia the following amendments in the Negotiable Instrument Act 1881, namely. (i) xxxxxx (ii) xxxxxx (iii) xxxxxx (iv) to prescribe procedure for dispensing with preliminary evidence of the complainant.

¶205

(v) xxxxxx

¶206

(vi) xxxxx

¶207

(vii) to make the offences under the Act compoundable. .....…

¶208

5. xxxxxx

¶209

6. The Bill seeks to achieve the above objects."

¶210

In a commentary the following observations have been made with

¶211

regard to offence punishable under section 138 of the N.I. Act. [ Cited from :

¶212

Arun Mohan, Some thoughts towards law reforms on the topic of Section 138

¶213

Negotiable Instrument Act -Tackling an avalanche of cases] :

¶214

"... ... Unlike that for other forms of crime, the punishment here (in so far 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 lies primarily in recovering the money rather than seeing 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 is little available as remedy for the holder of the cheque. If we were to examine the number of complaints filed which were 'compromised' or 'settled' before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued."

¶215

26/34 https://www.mhc.tn.gov.in/judis

¶216

Crl.R.C.No.578/2022

¶217

It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect.

¶218

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.

¶219

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

¶220

27/34 https://www.mhc.tn.gov.in/judis

¶221

Crl.R.C.No.578/2022

¶222

Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court.

¶223

I am also conscious of the view that judicial endorsement of the above quoted guidelines as given in the case of Damodar S. Prabhu (supra) could be seen as an act of judicial law making and therefore an intrusion into the legislative domain. It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. I have already explained that the scheme contemplated under Section 320 of the Cr.P.C. cannot be followed in the strict sense.

¶224

In view of the aforesaid discussion, 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. The complainant i.e. the person or persons affected can pray to the court that the accused, on compounding of the offence may be released by invoking inherent jurisdiction of this Court.

¶225

28/34 https://www.mhc.tn.gov.in/judis

¶226

Crl.R.C.No.578/2022

¶227

Generally, the powers available would not have been exercised

¶228

when a statutory remedy under the law is available, however, considering the peculiar set of facts and circumstances it would not be in the interest of justice to relegate the parties to the court. Additionally when both the parties have invoked the jurisdiction of this Court and there is no bar on exercise of powers and the inherent powers of this court can always be invoked for imparting justice and bringing a quietus to the issue between the parties.

¶229

As discussed above, the court is inclined to hold accordingly only because there is no formal embargo in section 147 of the N.I. Act. This principle would not help any convict in any other law where other applicable independent provisions are existing as the offence punishable under section 138 of the N.I. Act is distinctly different from the normal offences made punishable under Chapter XVII of IPC (i.e. the offences qua property).

¶230

In view of the observations and in view of the guidelines as laid down in the case of Damodar S. Prabhu (Supra) and also in view of the observations made in the judgment referred above and taking into account the fact that the parties have settled the dispute amicably by way of compromise, this Court is of the view that the compounding of the offence as

¶231

29/34 https://www.mhc.tn.gov.in/judis

¶232

Crl.R.C.No.578/2022

¶233

required to be permitted.

¶234

Accordingly, the present Criminal Revision Case is disposed of in terms of Memorandum of Compromise arrived at between the parties to this litigation out of Court. The impugned conviction and sentence passed in C.A.No.7 of 2020, dated 21.12.2021 by the learned III Additional Sessions

¶235

Judge, Villupuram at Kallakurichi, confirming the conviction and sentence made in C.C.No.42 of 2019, dated 30.01.2020 by the learned Judicial Magistrate Fast Track Court, Kallakurichi 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

¶236

acquitted on account of compounding of the offence with the complainant/person affected.

¶237

Office is directed to communicate this order to the learned trial court concerned immediately.

¶238

In the result,

¶239

30/34 https://www.mhc.tn.gov.in/judis

¶240

●

¶241

Crl.R.C.No.578/2022

¶242

The Criminal Revision Case is disposed of in terms of Joint Memorandum of Compromise dated 17.10.2022.

¶243

The impugned conviction and sentence passed in C.A.No.7 of 2020 dated 21.12.2021 by the learned III Additional Sessions Judge, Villupuram at Kallakurichi, confirming the conviction and sentence made in C.C.No.42 of 2019, dated 30.01.2020 by the learned Judicial Magistrate Fast Track Court, Kallakurichi are hereby modified.

¶244