IMPORTANT POINT
Complainant cannot be coerced to compound offence.

M.L. Mehta, J.—The present petition has been preferred under Section 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing the Criminal Complaint No.3002/2011 and order dated 31.05.2011 passed by the learned MM, whereby the petitioners’ prayer for compounding the offence made vide application under Section 147 of Negotiable Instruments Act (NI Act for short), was rejected.

2. In the abovementioned complaint filed by the respondent, it has been averred that in the year 2007, a payment of Rs. 4,50,000/- was made to the petitioners as part payment for purchasing a flat in the project named “Shivkala SRS Glamour”, which was to be developed by the company owned by the petitioners, named as M/s Advantage Engineering & Developers (P) Ltd. The possession of the flat was to be handed over to the respondent by October 2009, but as per the respondent, even the construction did not begin on the site of the project by the year 2009. Consequently the respondent asked the petitioners for the refund of the amount deposited by him and after various meetings, the respondent was handed over a cheque bearing no. 379512 dated 07.02.2010 amounting to Rs.1,00,000/- in partial discharge of their liability. The said cheque was dishonoured on its presentation with remarks “exceeds arrangement”. Further, the said cheque was again presented by the respondent for encashment after assurance from the petitioners, but it was dishonoured again. It has been averred that despite the service of a Demand notice dated 31.03.2010, the petitioners failed to make the payment against the dishonoured cheque as well as the rest of the due amount and hence the respondent was constrained to file a complaint in the Court.

3. The learned counsel for the petitioners has prayed for the quashing of the complaint and consequent proceedings and has assailed the impugned order of the ld. MM, rejecting the application of the petitioners under Section 147 of NI Act for compounding the offence on the ground that as the petitioners had tendered the amount of the cheque, the trial Court erred in disallowing the application of the petitioners for compounding the offence. Relaince has been placed on Damodar S.Prabhu v. SyJd Baba Lal1 and Hitek Industries Ltd. & Ors. v. State of Delhi & Anr.2 It has also been submitted that the petitioners though being Directors of the M/s Advantage Engineering & Developers (P) Ltd. are neither incharge of day to day affairs of the Company nor are responsible for any decision of the Company and are hence not liable for prosecution for the dishonour of the cheque in question.

4. Per contra, the learned counsel for the respondent has submitted that the respondent cannot be forced to accept the aforesaid amount or compound the case. It has been averred that the liability of the petitioners is up to the tune of Rs.4,50,000/- and the criminal cannot escape the liability of fine and compensation by just offering a payment of Rs.1,00,000/-. Moreover, considering the past demeanor of the petitioners, the respondents are not inclined to compound the offence and cannot be coerced to do so in the absence of any settlement agreement. It has been further averred that the petitioners had represented themselves to be the Directors of M/s Advantage Engineering & Developers (P) Ltd. at all times of the negotiations for the purchase of the flat and are further shown as Directors in the annual returns filed by them and are also summoned by the trial Court in their capacity as Directors.

5. I have heard the rival submissions and perused the record.

6. The contention of the learned counsel for the petitioners that they are neither incharge of day to day affairs of the Company nor are responsible for any decision of the Company, cannot be gone into by this Court as they have already been summoned by the learned Trial Court and this contention was not raised by the petitioners at that time.

7. Moving on to the issue of compounding the offence, it