Compounding of offences under NI Act Section 138 requires complainant's consent, and cannot be unilaterally initiated by the accused.

JUDGMENT :

(Subhendu Samanta, J.)

Both the criminal revisions have preferred u/s 141 of the Code of Criminal Procedure against two order and judgments dated 12th October 2018 passed by the Learned Additional Sessions Judge, Fast Track 2nd Court Howrah in criminal appeal No.53 of 2016 and 149 of 2015 respectively by upholding and modifying the order of conviction and sentence passed by the Judicial Magistrate sentencing the present petitioner to suffer punishment till rising of the court and directed to pay compensation amounting to Rs.1,20,000/-(One Lakh twenty thousand only) and Rs.6,80,000/-(Six Lakh eighty thousand only), respectively with a direction to surrender within 30 days.

2. The brief fact of the case is that the present opposite party lodged a written complaint before the Learned Judicial Magistrate, Howrah u/s 138 of the Negotiable Instrument Act (NI Act) against the present petitioner. The Learned Magistrate upon the said complaint has initiated case, considered the evidences on record and hold the petitioner guilty of commission of offence u/s 138 of NI Act and pass the order of sentence and compensation. Being aggrieved by and dissatisfied with the said judgment and order of the petitioner preferred appeal before the Learned Sessions Judge, Howrah. The Learned Additional Sessions Judge, Fast Court 2nd Court heard the appeals and pass the impugned order. Hence this revision.

3. During the course of argument of the instant revision applications the Learned Advocate for the petitioner submits that the matter may be compounded at this stage before this Hon'ble Court and the accused petitioner is ready to deposit the cheque amount along with the 15 % of cheque amount by way of costs to the opposite party.

4. The proposal of the Learned Advocate for the petitioner was firmly negated by the respondent/opposite party.

5. The Learned Advocate for the petitioner submits that by virtue of the ratio of Hon'ble Supreme Court passed in Damodar S.Pravhu The High court is empowered to compound the offences punishable u/s 138 of NI Act. The procedure of compounding of offence has been settled by the Hon'ble Supreme Court in Damodar S. Prabhu He also submitted that this Hon'ble Court in the case of Subrata Kumar Dutta reported in 2012 SCC online CAL 4526 quashed two criminal proceedings by strength of the ratio of Damodar S. Prabhu.

6. On the other hand the Learned Advocate for the opposite party submits that without consent of the complaint the proceeding u/s 138 of NI Act cannot be compounded at any stage. The matter was firmly discussed by the Hon'ble Apex Court in several decisions such as Meters Instrument Private Limited and Another Vs. Kanchan Mehta sou moto writ petition (Criminal) No.2 of 2020 reported in AIR 2021 SC 1957 as well as JIK Industries Limited and Ors.

7. In Damodar S.Prabhu Vs. Said Babalal reported in AIR 2010 SC 1907 the Hon'ble Supreme Court has fixed the guideline regarding the compounding of offences punishable u/s 138 of NI Act. The Guideline

In the circumstances, it is proposed as follows:

(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.

(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 %