Hari Om vs State Of U.P. And Another
2022 Latest Caselaw 182 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 71
 

 
Case :- CRIMINAL REVISION No. - 2223 of 2016
 

 
Revisionist :- Hari Om
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Surendra Kumar Tripathi,Mr Arvind Kumar Dixit
 
Counsel for Opposite Party :- G.A.,Brij Bihari Yadav
 

 
Hon'ble Samit Gopal,J.

1. Matter taken up in the revised list. No one appears on behalf of the revisionist to press this revision. Sri Brij Bihari Yadav, learned counsel for the opposite party no.2 is also not present.

2. Sri Sanjay Kumar Singh, learned State counsel is present.

3. This revision is of year 2016. This Court, therefore, deems it fit to proceed in the matter on the basis of the record with the assistance of the learned State counsel.

4. The present criminal revision under Section 397/401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") has been filed before this Court with the following prayers:

"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to allow the present revision and set-aside the judgment and order dated 23.7.2016 passed by Sri Prabhakar Rao, H.J.S., Additional Sessions Judge, Court No.12, Agra in Criminal Appeal No.74 of 2012 (Hari Om Vs. Hari Shankar Yadav) arising out of judgment and order dated 24.2.2012 passed by Sri Ishtiyak Ali, A.C.J.M, Court No.7, Agra in Complaint Case no.1371 of 2011 (Hari Shankar Yadav Vs. Hari Om), u/s 138 N.I. Act, P.S. Tajganj, District Agra and acquit the accused revisionist throughout in the interest of justice.

It is further prayed that this Hon'ble Court may kindly be pleased to enlarge the revisionist on bail and realisation of fine may also be stayed during the pendency of this revision before this Hon'ble Court.

And/or be pleased to pass such other and further order which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

5. A complaint dated 21.09.2010 was filed by the opposite party no.2 against the revisionist with the allegation that he had given a cheque no.129112 dated 10.07.2010 for Rs.35,000/- to him which was returned unpaid with the endorsement "funds insufficient" by the Bank after which a notice dated 26.08.2010 asking for payment of the same was sent and on failure to repay, the said complaint was filed. In the said matter, the trial court convicted the revisionist vide its judgment and order dated 24.02.2012 under Section 138 Negotiable Instrument Act to one year rigorous imprisonment and a fine of Rs.10,000/-. In the event of non-deposit of fine, six months simple imprisonment was imposed on the accused.

6. Being aggrieved with the judgment and order of conviction, the accused preferred Criminal Appeal No.74 of 2012 which was decided vide judgment and order dated 23.07.2016 passed by Additional Sessions Judge, Court No.12, Agra by which the judgment and order dated 24.02.2012 of the trial court was affirmed. Subsequently the present revision has been filed before this Court with the prayers as quoted above.

7. The matter was referred to the Mediation Centre of this Court vide order dated 16.8.2016 for making an effort between the parties for settling their disputes amicably.

8. As per the office report dated 10.03.2022, a report from the Mediation Centre of this Court is on record which states that mediation between the parties is successful.

9. From perusal of the report of Mediation Centre of this Court, it appears that in pursuance of the said order the mediation proceedings were taken up which ended in a settlement dated 20.1.2017 between the parties and the Mediation succeeded. The parties have settled their grievances and even the dispute arising out in the present matter.

10. The question that arises for consideration is as to whether at this stage of the proceedings when the revisionist has already been convicted by the trial court and his conviction has been upheld by the Appellate Court, the offence under Section 138 of NI Act can be compounded. The issue is no longer res integra. In Damodar S. Prabhu v. Sayed Babalal H. : (2010) 5 SCC 663, the Apex Court while laying down guidelines as to the levy of costs depending upon stage of the compromise arrived at between the parties, held that conviction of an accused in proceedings under Section 138 of NI Act can be set aside even at appellate stage and the accused can be acquitted on the basis of a compromise with the complainant. It is held in para 21 as follows:

"21. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed :

THE GUIDELINES

(i) In the circumstances, it is proposed as follows:

(a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.

(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.

(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.

(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount."

11. In Rajendra v. Nand Lal (Criminal Appeal Nos. 1214-1215 of 2019 arising out of SLP (Crl) Nos. 2990-2991/2019) decided on August 06, 2019), the Apex Court observed that in appropriate cases costs can be waived.

12. In K.M. Ibrahim v. K.P. Mohammed : (2010) 1 SCC 798, the Apex Court observed that Section 147 of NI Act does not bar the parties from compounding an offence under Section 138 even at appellate stage of the proceedings.

13. In the case of Meters and Instruments Private Limited v. Kanchan Mehta : (2018) 1 SCC 560 the Apex Court in para 18, has been held as follows:

i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.

(ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.

(iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.

(iv) Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases.

(v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances.

14. In the case of Vinay Devanna Nayak v. Ryot Seva Sahkari Bank Limited : (2008) 2 SCC 305 the Apex Court has held as under:

"18. Taking into consideration even the said provision (Section 147) and the primary object underlying Section 138, in our judgment, there is no reason to refuse compromise between the parties. We, therefore, dispose of the appeal on the basis of the settlement arrived at between the appellant and the respondent.

19. For the foregoing reasons the appeal deserves to be allowed and is accordingly allowed by holding that since the matter has been compromised between the parties and the amount of Rs. 45,000/- has been paid by the appellant towards full and final settlement to the respondent-bank towards its dues, the appellant is entitled to acquittal. The order of conviction and sentence recorded by all courts is set aside and he is acquitted of the charge levelled against him."

15. The offences under the N.I. Act can be compounded at any stage of the proceedings. In the case of Vinay Devanna Nayak (supra) the Apex Court held as follows:

"17. As observed by this Court in Electronics Trade & Technology Development Corpn. Ltd. v. Indian Technologists & Engineers (Electronics) (P) Ltd. [(1996) 2 SCC 739 : 1996 SCC (Cri) 454] the object of bringing Section 138 in the statute book is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. The provision is intended to prevent dishonesty on the part of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of bank operations and ensures credibility in transacting business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably, Parliament also realised this aspect and inserted Section 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002). The said section reads thus:

"147. Offences to be compoundable.?Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable."

16. Section 147 of NI Act begins with a non - obstante clause. The provision shall prevail despite anything to the contrary in any other or different statute. A dispute in the nature of complaint under section 138 of N.I. Act, can be settled by way of compromise irrespective of any other legislation including Cr.P.C. in general and section 320(1)(2) or (6) of the Cr.P.C. in particular. The scheme of section 320 Cr.P.C. deals mainly with procedural aspects; but it simultaneously crystallizes certain enforceable rights and obligation. Hence, this provision has an element of substantive legislation and therefore, it can be said that the scheme of section 320 does not lay down only procedure; but still, the status of the scheme remains under a general law of procedure and as per the accepted proposition of law, the special law would prevail over general law. The observations of the Apex Court in the case of Municipal Corporation, Indore v. Ratnaprabha : (1976) 4 SCC 622 is as follows:

"4. As has been stated, clause (b) of Section 138 of the Act provides that the annual value of any building shall "notwithstanding anything contained in any other law for the time being in force" be deemed to be the gross annual rent for which the building might "reasonably at the time of the assessment be expected to be let from year to year". While therefore the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be so "notwithstanding anything contained in any other law for the time being in force". It appears to us that it would be a proper interpretation of the provisions of clause (b) of Section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under Section 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, but, where this is not so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permissible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. This view will, in our opinion, give proper effect to the non-obstante clause in clause (b), with due regard to its other provision that the letting value should be "reasonable"."

17. A 'special law' means a provision of law, which is not applicable generally but which applies to a particular or specific subject or class of subjects. Section 41 of the Indian Penal Code, 1860 stands on the same footing and defines the phrase "special law". A special law or a statute is applicable to a particular subject, then the same would prevail over a general law with regard to the very subject. This is the accepted principle in the field of interpretation of statute.

18. Section 147 of N.I. Act starts with a non - obstante clause and is an affirmative enactment and as such has an overriding effect on Section 320 Cr.P.C.

19. An offence of dishonour of cheque is the compensatory aspect of the remedy which should be given priority over the punitive aspect.

20. Having regard to the aforesaid position of law, even though the parties have arrived at a settlement after the Appellate Court had upheld the conviction of the petitioner, yet keeping in view the spirit of Section 147 of the NI Act, the offence under Section 138 of the Act can be compounded. Therefore, this is a fit case where cost is required to be waived while compounding the offence. Since the parties have settled their disputes, it is in the fitness of things to close it at this stage itself as the conditions of settlement are mutually accepted between them. The dispute is an inter-se dispute between the parties and by entering into a settlement they have closed the dispute which had arisen between them.

21. From perusal of the records and the law laid down by the Apex Court on the subject matter, the present case is a good case for exercising powers by this Court to allow the present revision.

22. The present revision is allowed. The conviction and sentence under Section 138 of the N.I. Act stands annulled as this Court intends. The revisionist is acquitted on account of compounding of the offence with the complainant/person affected before the mediation centre of this Court.

23. The judgment and order dated 23.7.2016 passed by Sri Prabhakar Rao, H.J.S., Additional Sessions Judge, Court No.12, Agra in Criminal Appeal No.74 of 2012 (Hari Om Vs. Hari Shankar Yadav) and judgment and order dated 24.2.2012 passed by Sri Ishtiyak Ali, A.C.J.M, Court No.7, Agra in Complaint Case no.1371 of 2011 (Hari Shankar Yadav Vs. Hari Om), u/s 138 N.I. Act, P.S. Tajganj, District Agra are hereby set-aside.

24. Office is directed to communicate this order to the concerned court within two weeks from today.

(Samit Gopal, J.)

Order Date :- 11.3.2022

Gaurav