Post-conviction compromises under Section 138 of the Negotiable Instrument Act cannot nullify a conviction after an appeal has been dismissed, as per Section 362 of Cr.P.C.

Judgment

Reserved on :: 24/09/2024 Pronounced on :: 22/10/2024

1. The present petition is filed under Section 528 of BNSS, 2023 with a prayer to quash and set aside the proceedings and conviction under Section 138 of Negotiable Instrument Act, 1881(hereinafter “the Act”), arising out of judgment dated 24.02.2011 qua dishonor of cheque, wherein the petitioner was convicted and sentenced to one-year simple imprisonment, on the ground of compromise entered in-between the parties.

2. The factual matrix of the case is that the Respondent No.1 had filed a complaint against the petitioner under Section 138 of the Act, before the learned Trial Court alleging that the cheque bearing no.371816 dated 09.03.2007 for a sum of Rupees 100,000/- (Rupees One Lakh only) was dishonored due to insufficient funds, wherein the petitioner was convicted vide judgment dated 24.01.2011 and was awarded sentence for one year along with the fine amounting to Rupees 1,20,000/- (Rupees One Lakh Twenty Thousand Only).

3. Thereafter, being aggrieved by the said order of conviction and sentence, an appeal was preferred by the petitioner before the Appellant Court, wherein the judgment passed by the learned Trial Court was upheld vide judgment decree dated 21.09.2011.

4. Consequently, being further aggrieved, the petitioner left no stone unturned and approached the Co-ordinate Bench of this Court by filing a revision petition (S.B. Criminal Revision Petition No. 1874/2011), unfortunately the same was also dismissed vide judgment dated 21.08.2023, on the ground that pursuant to the order of the trial or appellant Court the petitioner had not surrendered and not remained in the custody at the time of filing present petition and since the dismissal of appeal dated 21.09.2011, for a period of 12 years the petitioner was avoiding the due process of law and was unable to appear in pursuance of aforesaid orders, therefore the petition was dismissed for non compliance.

5. Additionally, the fact of compromise was duly considered by the Coordinate Bench of this Court, and it was specifically averred as follows: -

“Sufficient time has been afforded to petitioner. Learned counsel appearing for petitioner submits that parties have entered into a compromise but to attest compromise, neither complainant is present, nor his authorized representatives is present before the Court.

On 21.09.2011 an appeal was dismissed and since then after 12 years this petitioner is avoiding the process of law and unable to appear in pursuant of aforesaid orders.

Further request for adjournment cannot be allowed and this petition is hereby dismissed for non- 
compliance.

Misc. application, if any, stands disposed of.

Before parting with the order, it appears that after dismissal of appeal on 21.09.2011, learned trial Court failed to ensure presence of present petitioner and to ensure that he is called served the sentence.”

6. In this background, the present petition is filed by the petitioner on the ground of compromise, as the petitioner has been serving the sentence passed by the Trial Court and upheld by the subsequent Courts.

7. Learned counsel appearing on behalf of the petitioner had submitted that in terms of Section 138 and 147 of the Act and Section 320 of Cr.P.C, even post-conviction and after dismissal of appeal, if a compromise is recognized between the parties, the criminal proceedings can be quashed, as proceedings under Section 138 are primarily a civil wrong carrying penal consequences.

8. Learned counsel appearing on behalf of the petitioner had further submitted that proceeding under the provisions of Section 138 of the Act are quasi- criminal in nature and the primary aim of the Act is to ensure payment rather than awarding a punishment.

9. Additionally, it was submitted that Section 147 of the Act does not specify the appropriate stage qua which offences can be compounded, and offences punishable under the Act can be compounded in accordance with Section 147. Therefore, proceedings qua Secti