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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Rajbir Sehrawat
CRM-M-17300 of 2017 (O&M)
M/s Anant Tools (Unit No.II) Pvt. Ltd. & Ors
v.
M/s Anant Tools Pvt. Ltd., Jalandhar
{Decided on 20/09/2018}
Although the counsel for the petitioners has rightly relied upon the subsequent judgment of the co-ordinate Bench of the Hon’ble Supreme Court rendered in M/s Meters and Instruments Private Limited’s case (supra), however, this Court finds that this judgment, though has referred to the earlier judgment of the Supreme Court rendered in JIK Industries Limited’s case (supra), however, has neither overruled the same nor has taken a detailed discussion regarding the proposition, which was specifically decided by the Hon’ble Supreme Court in the case of JIK Industries Limited’s case (supra). Therefore, this Court is faced with a piquant situation, where there are two judgments from two co-ordinate Benches of the Hon’ble Supreme Court on the same proposition, but are diametrically opposed to each other In view of this pronunciation of the law by the Constitutional Bench judgment of the Supreme Court in Pranay Sethi’s case (supra), this Court finds that; it has to follow the judgment rendered by the Hon’ble Supreme Court in case of JIK Industries Limited’s case (supra), which mandated the consent of the complainant for compounding of the offence under Section 138 of NI Act. (Para 11& 13)
(B) Negotiable Instruments Act, 1881, S.138 – Dishonour of Cheque – Compounding of Offence – Consent of complainant – In the present case, admittedly, there is no consent for compounding on the part of the complainant, therefore, it was impermissible for the trial Court to permit compounding merely on unilateral application moved by the petitioner/ accused alongwith payment of amounts of cheque – Application for compounding of offence held to be rightly declined. (Para 14)
(C) Constitution of India, Art. 141 – Precedent – Equal Strength – In case the subsequent bench of equal strength does not intend to follow the earlier Bench of the same strength; then the appropriate course for the subsequent bench is only to refer the matter to the larger Bench – It has further been clarified that in case this recourse is not adopted by the subsequent Bench, then it is the judgment first in point of time; which shall be a binding precedent on that point of law and not the subsequent judgment. (Para 12)
Mr. Rajbir Sehrawat, J. (Oral) - This order shall dispose of three petitions i.e. CRM-M-17300 of 2017 - M/s Anant Tools (Unit No.II) Pvt. Ltd. and others Vs. Anant Tools Pvt. Ltd., Jalandhar, CRM-M-17352 of 2017 - M/s Anant Tools (Unit No.II) Pvt. Ltd. and others Vs.Swatantar Kumar Chopra and CRM-M-17353 of 2017 - M/s Anant Tools (Unit No.II) Pvt. Ltd. and others Vs. Anant Tools Pvt. Ltd., Jalandhar, involving identical facts, but involving different cheques, and thus resulting in three different complaints and three different proceedings.
2. Broadly outlined, the facts of this case are that the respondent – M/s Anant Tools Pvt. Limited filed complaint against the present petitioners, which is, incidentally, having a little bit similar name, i.e. M/s Anant Tools (Unit No.II) Pvt. Limited, and its Directors. The allegations in the complaint are that earlier the complainant and the accused had common business and were initially running a joint business. However, thereafter, the business was separated by the two. As a result, the assets, rights and liabilities were divided between the parties. An amount of Rs.18,52,253/- was required to be paid by the accused No.1 to the complainant, as a result of the above said settlement, as involved in one complaint. There are other amounts also, which are involved in two other complaints. For discharge of the above said liability, the petitioners had issued cheque dated 08.01.2009 for the above said amount of Rs.18,52,253/-. For the amounts involved in other complaints, two other cheques were also issued. However, on being presented, the cheques were dishonored by the Bank. Resultantly, notices were issued to the petitioners/ accused on account of dishonor of all the three cheques, as involved in three complaints. Despite the notices, the amounts were not paid by the petitioners. This resulted into complaints being filed against the petitioners under Section 138 of Negotiable Instruments Act. The summoning orders were issued against the present petitioners in all the three complaints.
3. During the pendency of the above said complaints against the petitioners, they filed applications for compounding of the offences in all the three complaints. However, since the complainant had not agreed for compounding the offences, therefore, the trial Court dismissed the applications moved by the petitioners, in all the three complaints.
4. Challenging that order passed by the trial Court; as well as; seeking quashing of the complaint and the summoning order, the present petitions have been filed.
5. Counsel for the petitioners has contended that, after the summons were issued against the present petitioners in the complaints, then they had also got lodged an FIR against the complainant. As an attempt for compromising the entire matter, the complainant had agreed for quashing of the complaints, at the stage when the complaints had filed application for seeking anticipatory bail; in the FIR case lodged by the petitioner. However, thereafter, the complainant got dishonest and the complainant tried to get out of the agreement arrived at between the parties. Hence, the petitioners moved the abovesaid applications for compounding, by attaching the drafts for the amounts of cheque involved in the complaint; with further undertaking to pay anymore reasonable amount deemed appropriate by the Court. But these applications have been dismissed by the trial Court. It is further contended by the counsel that as per the law laid down by the Hon’ble Supreme Court in 2010(5) SCC 663 – Damodar S. Prabhu v. Sayed Babalal H. and another judgment rendered in 2017(4) RCR (Criminal) 476 – M/s Meters and Instruments Private Limited and Another v. Kanchan Mehta, [2017(3) Law Herald (SC) 2321 : 2017(4) Law Herald (P&H) 2961 (SC) : 2017 LawHerald.Org 1468] the consent of the complainant is not required for compounding the offence under Section 138 of Negotiable Instruments Act. Counsel has referred to the judgment of the
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