In the revisionary jurisdiction, it is not mandatory for the convicted accused to surrender, and the acceptance of compromise and due amount by the complainant is crucial in cases under Section 138 of the Negotiable Instruments Act.

ORDER

1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.

2. The question arose whether in the revisionary jurisdiction, it was mandatory for the convicted accused to surrender or not.

3. To this, learned counsel for the petitioner referred to the judgment rendered by Jaipur Bench of this Court in Vishnu Teli Vs. The State of Rajasthan & Anr. (S.B.Criminal Revision Petition No.1733/2009), decided on 25.11.2010, relevant portion reads as under :-

'Therefore, this Court is of the opinion that the non-surrender of the appellant or revisionist would not make the appeal or the petition non-maintainable. The non-surrender would merely mean that the appeal or the petition has not been presented properly before the registry. Therefore, the preliminary objection raised by the learned Public Prosecutor is unacceptable.

Both, the accused person and the complainant are present before this Court; they have been duly identified by their respective counsel; a compromise, entered between the parties, has also been produced before this Court; the same shall be taken on record. Recently, the Hon'ble Supreme Court has opined that the aim and purpose of Section 138 of NI Act is not to punish the accused, but to ensure that the due amount is duly returned to the complainant. Considering the nature of litigation under Section 138 of N.I. Act, in case the amount is paid and is duly accepted by the complainant the Apex Court is of the opinion that the case should be compounded and the accused should be acquitted.

In the present case, the amount has duly been accepted by the complainant and the compromise is a clear proof thereof. Thus, this Court quashes and sets aside the judgments dated 09.02.2009 and 12.11.2009 and acquits the petitioner for the offence under Section 138 of the N.I. Act. '

4. This Court finds that in Section 138 of the Negotiable Instruments Act which is more of a civil character in criminal procedure, the judgment rendered by learned counsel for the petitioner in Vishnu Teli (Supra) is directly applicable.

5. It is also stated at Bar that a compromise has been arrived at between the parties after the judgment dated 15.12.2020 passed by the appellate court, whereby the judgment dated 30.08.2017 passed by the trial has been affirmed.

6. It is borne out from the compromise that the complainant is not inclined to proceed further in the matter.

7. Learned counsel for the parties have placed reliance on a decision of Supreme Court in case of Damodar S. Prabhu vs Sayed Babalal H [2010(5) SCC 66].

8. Having considered the facts and circumstances of the case, since the parties have settled the dispute and complainant respondent No.2 had accepted the sum towards full and final settlement of the cheque, on the satisfaction of the complainant and in the light of provisions of Section 147 of NI Act and in view of law laid down by Hon'ble Apex Court in the case of Damodar S. Prabhu Vs. Sayed Babalal H. (supra), the sentence awarded to the petitioner for offence under Section 138 NI Act is liable to be set aside. However, as compromise has been arrived at after rejection of the appeal preferred by the petitioner, a cost of 15% of the cheque amount deserves to be imposed upon the petitioner in the light of the decision rendered by the Hon'ble Apex court in the case of Damodar S. Prabhu (Supra).

9. Accordingly, the petitioner is directed to deposit 15% of the cheque amount with the Deputy Secretary, Rajasthan State Legal Services Authority, Jodhpur within a period of two weeks from today.

10. The conviction and sentence of imprisonment awarded to the petitioner for offence under Section 138 Negotiable Instruments Act, vide judgment dated 30.08.2017 passed by learned Special Judge (NI Act Cases) No.2 Udaipur in Criminal Case No.104/2013 (CIS No.5329/2014) as affirmed by judgment dated 15.12.2020 passed by l