Calcutta High Court (Appellete Side)
Gopal Agarwal (In Custody) vs State Of West Bengal & Anr on 9 February, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 2020 of 2019
With
CRAN No. 1 of 2023
Gopal Agarwal (In Custody)
Vs
State of West Bengal & Anr.
For the Petitioner : Mr. Sourav Chatterjee,
Ms. Mili Saha,
Mr. Mitul Chakraborty,
Ms. Namrata Chatterjee.
For the Opposite Party No.2 : Mr. Ramashis Mukherjee,
Mr. Rameshwar Sinha.
Heard on : 07.02.2023
Judgment on : 09.02.2023
Shampa Dutt (Paul), J.:
The revisional application had been preferred against judgement and
order dated 24.04.2019 passed by the Learned Additional Session Judge, 1st
Court, Howrah in Criminal Appeal No.40 of 2018 affirming the judgement and
order dated 07.02.2018 passed by the Learned Judicial Magistrate, 5th Court
Sadar, Howrah in connection with 1372 C of 2014 (TR No.585 of 2011).
The petitioner's case is that in a proceeding under Section 138 of the N.I.
Act, 1881 the learned Judicial Magistrate, 5th Court Sadar, Howrah was
pleased to convict the petitioner to suffer simple imprisonment for one month
and also to pay a compensation of Rs. 40,00,000/- in default simple
imprisonment for six months more. The said judgment and order was affirmed
by the learned Additional District & Session Judge, 1st Court, Howrah.
Hence, the revision.
CRAN 1 of 2023 has now been filed jointly by both the parties
stating that a compromise/settlement has been arrived at between the
parties and an amount agreed upon by both the parties has been paid by the
petitioner/accused. The dispute/offence in this case is compoundable and
has been settled and resolved amicably. The grounds of settlement has been
stated in the joint petition of compromise filed on affidavit by both the parties.
It has been specifically stated on affidavit by the opposite party
no.2/complainant that in view of the said amicable settlement of dispute he
does not wish to proceed against the petitioner in the impugned proceeding
as he does not have any grievance against the petitioner at present.
Learned counsel for both the parties have submitted as per the affidavit
filed before this court and have relied upon certain judgments.
Learned counsel for the petitioner has further submitted that during the
pendency of this revisional application, the petitioner is in custody and has
suffered detention for almost the substantive sentence.
The Supreme Court in B.V. Seshaiah vs. The State of Telangana &
Anr. and B. Vamsi Krishna vs. The State of Telengana & Anr., (2023 Live
Law(SC) 75) on 1st February, 2023 held:-
"8. In our view, the terms ad conditions of the
settlement entered into by the parties binds them to
settle the dispute amicably, or through an arbitration
as has been stated in clause 8 of the Memorandum
of Understanding.
9. In such a circumstance, the Appellants
cannot be convicted on the basis of the orders
passed by the courts below, as the settlement is
nothing but a compounding of the offence.
10. In the case of M/s. Meters and
Instruments Private Limited & Anr. Vs.
Kanchan Mehta, this court held that the nature of
offence under section 138 of the N.I. Act is primarily
related to a civil wrong and has been specifically
made a compoundable offence. The relevant
paragraph of the judgement has been extracted
herein:
"This Court has noted that the object of
the statute was to facilitate smooth
functioning of business transactions.
The provision is necessary as in many
transactions' cheques were issued
merely as a device to defraud the
creditors. Dishonour of cheque causes
incalculable loss, injury and
inconvenience to the Vide the Banking,
Public Financial Institutions and
Negotiable Instruments Laws
(Amendment) Act, 1988 payee and
credibility of business transactions
suffers a setback. At the same time, it
was also noted that nature of offence
under Section 138 primarily related to a
civil wrong and the 2002 amendment
specifically made it compoundable."
11. This is a very clear case of the parties
entering into an agreement and compounding the
offence to save themselves from the process of
litigation. When such a step has been taken by the
parties, and the law very clearly allows to do the
same, the High Court then cannot override such
compounding and impose its will."
Considering the said position of law as laid down by the Supreme Court,
the present revisional application along with CRAN 1 of 2023, which be made
part of the record, stands allowed.
The order of conviction dated 07.02.2018 passed by the learned Judicial
Magistrate, 5th Court Sadar, Howrah in 1372 C of 2014 (TR No. 585 of 2011)
and affirmed by the learned Additional District & Session Judge, 1st Court,
Howrah on 24.04.2019 in Criminal Appeal No. 40 of 2018 are hereby set
aside.
The petitioner/accused is accordingly discharged from the case and be
set at liberty at once.
The revisional application being CRR 2020 of 2019 along with CRAN
1 of 2023 are accordingly disposed of on compromise.
There will be no order as to costs.
All connected Applications, if any, stand disposed of.
Interim order, if any, stands vacated.
Copy of this judgment be sent to the Trial Court forthwith for
necessary compliance.
Parties to act on the basis of server copy of this judgment and order
duly downloaded from the official website of this Hon'ble Court.
Urgent photostat certified copy of this judgment and order, if applied
for, be supplied to the parties as expeditiously as possible after complying with
all legal formalities.
(Shampa Dutt (Paul), J.)
