An offence under Section 138 of the Negotiable Instruments Act can only be compounded with the consent of the complainant, as reiterated by the court.

JUDGMENT :

Aman Chaudhary, J.

This order shall dispose of above-mentioned two petitions involving identical facts, but different cheques, and thus resulting in two separate complaints under Section 138 of the Negotiable Instruments Act, 1881, (for short ‘N.I. Act’).

2. Challenge in the present petitions are to the orders dated 28.04.2017, Annexure P-5 in CRM-M-26106-2017 and 01.09.2017, Annexure P-6 in CRM-M-35461-2017, whereby applications moved by the petitioners under Section 147 of the Negotiable Instruments Act seeking compounding the offences have been dismissed.

3. Learned counsel submits that the petitioners are ready to make the payment of cheque(s) amount i.e. Rs.13,50,000/- in both cases, therefore, necessary direction be given to compound the offence.

4. Learned counsel for the respondent submits that though the petitioners had filed applications for compounding the offence before the Appellate Court/trial Court, however, even though the respondent was not agreeable for it on account of the fact that they were only paying the cheque amount and not anything over and above. As such, the respondent has a right to refuse to get the offence compounded. Further that, the matter has been referred 4 times to the Mediation Centre, still nothing was paid to them. Reference is made to the judgments in M/s Anand Tools Ltd. And others vs. M/s Anand Tools Pvt. Ltd. Jaladhar , 2019(1) RCR (Criminal) 137, Priya Aditya and others’ vs. Sharad Goel 2019 (2) Law Herald (P&H) 1687 : and JIK Industries Limited and others vs. Amarlal V. Jumani and another , 2012(1) R.C.R. (Criminal) 822.

5. Heard and perused.

6. The Hon’ble Supreme Court in A.S. Pharma (P) Ltd. v. Nayati Medical (P) Ltd. : 2024 SCC OnLine SC 2539, has held that the Court could not quash the complaint under Section 138 of the NI Act in the exercise of its inherent power without the consent of the complainant based on the fact that the complainant has been adequately compensated. It was observed:-

“14. As relates the requirement of ‘consent’ for compounding offence under Section 138 , N.I. Act, by invoking the power under Section 147 , N.I. Act, it is to be noted that the question is no longer res integra. This Court in the decision in JIK Industries Ltd. & Ors v. Amarlal V.Jumani & Anr. [(2012) 3 SCC 255] declined to accept the contention that in view of the non-obstante clause in , NI Act, which is a special statute, the requirement of consent of the person compounding the offence under , N.I. Act, is not required. After extracting provision under , N.I. Act, this Court in JIK Industries Ltd. case (supra) observed and held in paragraph 58 and 59 thereof thus: -

“58. Relying on the aforesaid non obstante clause in Section 147 of the NI Act, the learned counsel for the appellant argued that a three-Judge Bench decision of this Court in Damodar [(2010) 5 SCC 663], held that in view of non obstante clause in of the NI Act, which is a special statute, the requirement of consent of the person compounding in Section 320 of the Code is not required in the case of compounding of an offence under the NI Act.

59. This Court is unable to accept the aforesaid contention for various reasons which are discussed below.”

15. In the contextual situation it is relevant to refer to a recent decision of this Court in Raj Reddy Kallem v. The State of Haryana & Anr. [2024 INSC 347]. The said decision would reveal that this Court took note of earlier decisions of this Court in JIK Industries Ltd. case (supra) as also in the decision in Meters and Instruments Private Ltd. & Anr. V. Kanchan Mehta [(2018) 1 SCC 560] and in un-ambiguous terms held that for compounding the offence under Sec