Gujarat High Court
Bhanushali Hiten Diwakar vs State Of Gujarat on 9 August, 2021
Bench: Gita Gopi
R/SCR.A/4049/2021 ORDER DATED: 09/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4049 of 2021
==========================================================
BHANUSHALI HITEN DIWAKAR
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR NISARG H VYAS (9431) for the Applicant(s) No. 1
MR NIKHIL S VYAS (5663) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR (2) for the
Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/08/2021
ORAL ORDER
1. Rule. Learned APP and learned advocate Mr. Nikhil Vyas waive
service of notice of rule on behalf of the respective respondents. With the
consent of learned advocates on both the sides, the matter is heard finally.
2. By way of this petition filed under Section 482 of the Code of
Criminal Procedure on the basis of compromise arrived at between the
parties, the petitioner, original accused in Criminal Case No.558 of 2018,
has prayed to quash and set aside the judgment and order of conviction
and sentence dated 16.03.2021 passed by the Court of learned Additional
Judicial Magistrate (F.C.), Mandvi - Kachchh, whereby the petitioner-
original accused came to be convicted for the offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (for short, "the NI
Act") and has been sentenced to undergo SI for 12 months and fine
amounting to twice the amount of cheque involved, which was ordered to
be paid as compensation to the complainant on its deposit by the accused;
R/SCR.A/4049/2021 ORDER DATED: 09/08/2021
and in case of non-payment of the fine amount, the accused was ordered
to undergo SI for a further period of Two Months.
3. The respondent-complainant, who has been identified by learned
advocate Mr. Nikhil Vyas, appeared before the virtual Court and stated
that he has received the entire amount, as has been directed by the Court
below in the impugned judgment and order of conviction and sentence.
4. Learned advocate Mr. Nisarg Vyas appearing for the petitioner-
accused, therefore, submitted that the impugned judgment and order of
conviction and sentence may be quashed and set aside on the ground of
settlement between the parties.
5. Heard learned advocates on both the sides. Section 147 of the NI
Act deals with "Offences to be compoundable". It was inserted by Act 55
of 2002 with effect from 06.02.2003. For ready reference, Section 147 is
reproduced hereunder:-
"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."
6. It would be apt to clarify that in view of the non-obstante clause,
the compounding of offences under the NI Act is controlled by Section
147 and the scheme contemplated by Section 320 of Cr.P.C. will not be
applicable in the strict sense since the latter is meant for the specified
offences under the IPC. So far as the Cr.P.C. concerned, Section 320
deals with offences which are compoundable, either by the parties
R/SCR.A/4049/2021 ORDER DATED: 09/08/2021
without the leave of the court or by the parties but only with the leave of
the Court. Sub-section (1) of Section 320 enumerates the offences which
are compoundable without the leave of the Court, while sub- section (2)
of the said section specifies the offences which are compoundable with
the leave of the Court. Section 147 of the NI Act is in the nature of an
enabling provision which provides for the compounding of offences
prescribed under the same Act, thereby serving as an exception to the
general rule incorporated in sub-section (9) of Section 320 of Cr.P.C.
which states that "No offence shall be compounded except as provided by
this Section". A bare reading of this provision would lead us to the
inference that offences punishable under laws other than the IPC also
cannot be compounded. However, since Section 147 was inserted by way
of an amendment to a special law, the same will override the effect of
Section 320(a) of the Cr.P.C. especially keeping in mind that Section 147
carries a non- obstante clause.
7. In Damodar S. Prabhu v. Sayed Babalal H., AIR 2010 SC 1907,
the Apex Court held that Section 147 of the NI Act is in the nature of an
enabling provision and served as an exception to the general rule
incorporated in sub-section (a) of Section 320 of Cr.P.C. Considering the
facts and circumstances of the case and the principle rendered in
Damodar S. Prabhus's case (supra), the offence in question could be
compounded.
8. In the result, the petition is allowed. The impugned judgment and
order of conviction and sentence dated 16.03.2021 passed by the Court of
learned Additional Judicial Magistrate (F.C.), Mandvi - Kachchh in
R/SCR.A/4049/2021 ORDER DATED: 09/08/2021
Criminal Case No.558 of 2018 is quashed and set aside in view of the
settlement arrived at between the parties. Rule is made absolute.
( GITA GOPI, J )
PRAVIN KARUNAN
