IMPORTANT POINT
Offence under Section 138, N.I. Act can be compounded with mutual consent of parties.

S.K. Mishra, J.—The matter is taken up for disposal at the stage of admission.

2. In this revision the petitioner assails his conviction for the offence under Section 138 of Negotiable Instruments Act, 1881 in ICC No.557 of 2007 and the confirming judgment of the Second Addl. Sessions Judge, Cuttack in Cri. Appeal No. 65 of 2008.

3. In short, the case of the complainant is that the accused is a friend of the complainant. He was facing financial loss in business because .of super-cyclone in the year 1999 and then he approached the complainant for financial assistance to revive his units and because of the good relationship, the complainant gave a total sum of Rs.7,50,000 on different dates. An agreement was executed between them on 17.9.2004 wherein it was stipulated that in total a sum of Rs.10,00,000 would be paid by the accused to the complainant to meet the principal and interest component. A further agreement was executed on 27.6.2005 and in due compliance of the terms and conditions of the two agreements as averred above accused issued a cheque bearing No.11920 dated 25.12.2005 drawn on the Urban Cooperative Bank, Dolamundai Branch to meet the above outstanding dues and the complainant presented it through his Bank i.e. UTI Bank Limited, Badambadi for clearance on 30.5.2006. The cheque bounced because of insufficiency of the funds in the account of the accused. On 1.6.2006, the complainant issued the statutory notice to the accused for making the payment of the dues. But after receiving the notice, the accused did not agree to pay the amount and accordingly, the complaint petition was filed before the learned SDJM, Sadar, Cuttack.

4. After trial, the learned SDJM, Sadar, Cuttack found that the complainant has proved his case’ beyond reasonable doubt, therefore, he convicted the present petitioner and directed him to pay compensation of Rs.9,50,000 to the complainant and to undergo SI for two years, failing which the complainant was at liberty to realise the same through process of Court. Such conviction was challenged by the present petitioner in Cri. Appeal No. 65 of 2008, the Second Addl. Sessions Judge, Cuttack as per his judgment dated 10.3.2009 dismissed the appeal and upheld the conviction recorded by the SDJM, Sadar, Cuttack. Such concurring judgments are challenged in this revision. During the pendency of the revision, the petitioner filed an affidavit on 10.8.2009 and the petitioner and opposite party No. 2 i.e. the complainant filed a joint affidavit on 17.8.2009 stating that a settlement has been entered into between himself and the opposite party No. 2 the accused. It is further averred that the matter has been compromised between the parties and an amount of Rs. 8,00,000 by way of AC Banker’s cheque bearing No.033630 dated 5.8.2009 of the Axis Bank Ltd. has been paid by the petitioner towards the full and final settlement to him (complainant) towards the dues, the complainant has no objection if order of acquittal is passed. He further averred that the original lease deed of IDCO which was kept as security with the opposite party No. 2 has already been returned to the petitioner. He also declares that he do not want to proceed further in the case and the offence under Section 138 N.I. Act may be compounded for the ends of justice. He is duly identified by Mr. Biswaranjan Sahu, Advocate. The affidavit reveals that the complainant is identified by Advocate Mr. S.K. Patnaik.

Section 147 of NI Act is quoted below:

“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”.

5. In course of submission, the learned counsel for the petitioner relied upon the case inVinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd.1 wherein the Hon’ble Apex Court has held that after the amendment of Section147, the offence of Section138 of the NI Act is compoundable.

6. Keeping in view of such change