Nababrata Ghosh vs The State Of Assam And Anr
2021 Latest Caselaw 426 Gua

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GAHC010053222020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : I.A.(Crl.)/226/2020

            NABABRATA GHOSH
            LOKNATH AGENCIES, R/O. PANDU, RAILWAY BAZAR, P.O. PANDU, P.S.
            JALUKBARI, GUWAHATI-781012, DIST. KAMRUP (M), ASSAM.



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY THE PP, ASSAM.

            2:SHREE SAI ENTERPRISE
             BELTOLA TINIALI
             GUWAHATI-781028
             P.S. BASISTHA
             DIST. KAMRUP (M)
            ASSAM
             REP. BY ITS PROPRIETOR- HEMANT SUREKA
             S/O. KAILASH CHAND SUREKA

Advocate for the Petitioner   : MR. A PAUL

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                     HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                             ORDER

Date : 08-02-2021

Heard Mr. A Paul, learned counsel for the applicant. Also heard Mr. B Sarma, Page No.# 2/4

learned Addl. Public Prosecutor and Mr. B Deka, learned counsel appearing for the resondent No.2/complainant.

By this application under Section 147 of the Negotiable Instruments Act ('NI Act' for short), the applicant/ accused has prayed for compounding of offence and to set

aside conviction and sentence passed by the learned Judicial Magistrate, 1 st Class, Kamrup (M), Guwahati in CR Case No. 2135/2014, dated 03.04.2017 under Section 138 of the NI Act, which was upheld by the learned Addl.Sessions Judge, FTC, Kamrup (M) Guwahati vide judgment and order, dated 08.04.2019 in Criminal Appeal No.95/2017 in terms of the amicable settlement , dated 06.05.2019, between the parties.

The applicant has contended that he filed a petition under Section 482/401 CrPC being Criminal Pettion No.555/2019 praying for setting aside the conviction and sentence passed by the learned Courts below in view of the compromise arrived at between the parties. However, while disposing the said petition on 07.02.2020, this Court declined to allow the petition. Therefore, in veiw of amicable settlement of the dispute with regard to the cheque amount between the parties being a compoundable offence, the same may be allowed.

Mr. B Deka, learned counsel for the respondent No.2/complainant submits no objection against the prayer of the applicant.

Mr. A Paul, learned counel for the applicant submits that atleast 1(one) month time may be granted to deposit 15% of the amount of the compromised cheque amount of Rs.80,000/-, which sas already been paid.

A perusal of the record of Criminal Petition No.555/2019 reveals that this Court while disposing the said petition on 07.02.2020 directed as hereunder:-

"Therefore, it is directed that the petitioner shall pay 15% of the cheque amount by way of costs, within a period of 2(two) months from the date of this order to be deposited with the District Legal Services Authority, Kamrup (M) at Guwahati in compliance of the mandate of Damodar S Prabhu vs- Sayed Babalal H, reported in Air (2020) SC 1907.

Now, it is noticed that by Deed of Agreement of Amicable Settlement, dated Page No.# 3/4

06.05.2019, executed between both the parties, the total amount due to the respondent No.2 has been settled amicably for a sum of Rs.80,000/- only and accordingly the applicant has paid the said amount although the learned trial Court directed to pay compensation of Rs.1,70,000/- as the cheque amount was Rs.1,00,000/-, which was affirmed in appeal.

In K.M Ibrahim Vs KP Mohammed & anr. Reported in (2010) 1 SCC 798, the Hon'ble Supreme Court held as under:

"13. As far as the non obstante clause included in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of offences. The various decisions cited by Mr. Rohatgi on this issue do not add to the above position.

14. It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution.

15. Since the parties have settled their disputes, in keeping with the spirit of Section 147 of the Act, we allow the parties to compound the offence, set aside the judgment of the Courts below and acquit the appellant of the charges against him."

In view of the above decision of the Hon'ble Apex Court and in the light of the mandate of Section 147 of the NI Act, the parties are allowed to compound the offence and accordingly, set aside the impugned judgments and orders of the learned courts below and acquit the applicant of the charge subject to deposit of 15 % of the compromised amount within a period of 1(one) month.

This order shall be read along with the order, dated 07.02.2020 passed in Criminal Page No.# 4/4

Petition No.555/2019.

This interlocutory application stands disposed of.

JUDGE

Comparing Assistant