Chetandas Puranchand ... vs State Of Gujarat
2021 Latest Caselaw 13405 Guj

   R/SCR.A/7558/2021                            ORDER DATED: 03/09/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CRIMINAL APPLICATION NO. 7558 of 2021

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               CHETANDAS PURANCHAND KHANCHANDANI
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR MOHD. SHAHRUKH M SAIYAD (11014) for the Applicant(s) No. 1
MR RD BHAVSAR for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 03/09/2021

                             ORAL ORDER

1. RULE. Learned Additional Public Prosecutor and learned Advocate Mr. R.D. Bhavsar 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.1595 of 2019, has prayed to quash and set aside the judgment and order of conviction and sentence dated 21.08.2019 passed by the Court of learned 3rd Additional Chief Judicial Magistrate, Anand whereby the petitioner original accused came to be

R/SCR.A/7558/2021 ORDER DATED: 03/09/2021

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 simple imprisonment for six months and fine of Rs.5,000/- and in default of payment of fine, simple imprisonment of 15 days.

3. The respondent-complainant is present in the Court. Learned Advocate Mr. R.D. Bhavsar appears for the complainant and his Vakalatnama is ordered to be taken on record. The complainant states that he has received the amount and the settlement has been arrived at between the parties. The complainant has also filed an Affidavit wherein he stated about the fact of settlement and also that he does not wish to prosecute the criminal proceedings as the same has been amicably settled.

4. Learned Advocate Mr. M.M. Saiyad 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

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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 partieswithout 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

R/SCR.A/7558/2021 ORDER DATED: 03/09/2021

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 21.08.2019 passed by the Court of the learned 3 rd Additional Chief Judicial Magistrate, Anand in Criminal Case No.1595 of 2019 is quashed and set aside in view of the settlement arrived at between the parties. Rule is made absolute.

Sd/-

(GITA GOPI, J) Caroline