2004 Supreme(Guj) 242

Gujarat High Court
Judgename :C.K.BUCH,
KIRPALSINGH PRATAPSINGH ORI - Appellant
Versus
SALVINDER KAUR HARDIPSINGH LOBANA - Respondent
S.CRI.A.209 of 2004
Decided On : 04/07/2004

Headnote:(a) Negotiable Instruments Act, 1881 (Central Act 26 of 1881) - Sec. 138 read with Sec. 147 - Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sec. 320 Tables I & II - Compounding of offence - Scope of - It would be wrong to hold that at revisional stage or even beyond that stage nature of offence punishable under Sec. 138 of the Act would change and it should be treated as if the same is falling under Table II of Sec. 320 of the Code compoundable with the permission of the Court - The parties are at liberty to compound the matter at any stage even after dismissal of the revision application.

       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 Sec. 138 of the NI Act should be treated as if the same is falling under Table-II of Sec. 320 IPC. It will be difficult to accept the proposition put forward by learned APP that even if the offence made punishable under IPC and reference to Sub-sec. (1) of Sec. 320 i.e Table I shown in Sec. 320 CrPC it cannot be compounded without prior permission.

       [Para 26]

       The offence made punishable under Sec. 138 of NI 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 Sec. 468 of CrPC referred to hereinabove. So the parties, in reference to offence under Sec. 138 NI Act read with Sec. 147 of the said Act are at liberty to compound the matter at any stage even after the dismissal of the revision application. 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 NI 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 under Sec. 482 CrPC read with Art. 226 of the Constitution of India.

       [Para 27]

       (b) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sec. 482 - Negotiable Instruments Act, 1881 (Central Act 26 of 1881) - Sec. 138 read with Sec. 147 - Conviction confirmed in appeal - Compounding of - There is no formal embargo in Sec. 147 of the Act against compounding - Only requirement was that parties compounding the offence under Sec. 138 of the Act must satisfy the conscious of the Court on facts when jurisdiction under Art. 226 of Constitution and Sec. 482 of the Code is invoked - Court consequently accepted the compromise entered into by parties as genuine and set aside conviction by Courts below.

       The Court is aware about one accepted principle of law and the principle governing the concept of judicial restrain that unless the Court is asked to answer a particular point, normally the Court should not venture to deal with the points which are not raised by any of the parties. But when the Court was dealing with the said two Special Criminal Revision Applications certain queries were put during hearing to the learned counsel appearing for the parties and the points discussed were a matter of discussion in reference to Sub-sec. (6) of Sec. 320 CrPC, Sec. 147 of NI Act and the jurisdiction of this Court under Sec. 482 of CrPC read with Art. 226 of the Constitution of India. The Court is also aware of other principle of law that when a thing is required to be done in a particular way { provided under a law or rules framed there under} then it should be done in that manner only. But when the jurisdiction of this Court being very wide under Art. 226 of the Constitution of India read with third part of Sec. 482 CrPC the Court can bring legal resolution. If all parties are asked to approach the Apex Court then, what will be situation, is a question which is required to be considered in the back ground of another accepted progressive and pragmatic principle accepted by our Courts that, if possible, the parties should be provided justice at the door step. The phrase justice at the door step has taken this Court to think and reach to a conclusion that it can be considered and looked into as one of such special circumstances especially when grant of previous permission to enter into compromise for the purpose of compounding offence is not made a condition precedent in Sec. 147 of NI Act. Of course, the parties compounding the offence under Sec. 138 of NI Act obviously are bound to satisfy the conscious of the Court on facts, when the jurisdiction under Art. 226 of the Constitution of India read with Sec. 482 CrPC is invoked with readiness and willingness to pay the reasonable amount of costs, if awarded while dealing with such petitions.

       [Para 29]

       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 Sec. 482 CrPC.

       [Para 31]