Kamal Bafna vs Nilesh Jain
2023 Latest Caselaw 3765 MP

                                                                               1
                                             IN     THE       HIGH COURT OF MADHYA PRADESH
                                                                    AT INDORE
                                                                      BEFORE
                                                      HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                                                   ON THE 3 rd OF MARCH, 2023
                                                              CRIMINAL APPEAL No. 9676 of 2022

                                            BETWEEN:-
                                            KAMAL BAFNA S/O BABULAL BAFNA, AGED ABOUT 65
                                            YEARS, OCCUPATION: ARIHANT TRADERS 13/2, PATEL
                                            BEIDGE, SIYAGANJ, INDORE, DISTRICT INDORE
                                            (MADHYA PRADESH)

                                                                                                              .....APPELLANT
                                            (BY SHRI VIVEK SINGH - ADVOCATE)

                                            AND
                                            NILESH JAIN S/O NAVEEN JAIN, AGED ABOUT 40
                                            YE A R S , OCCUPATION: BUSINESS 154, SHIKSHAK
                                            NAGAR, AERODROME ROAD, INDORE, DISTRICT
                                            INDORE (MADHYA PRADESH)

                                                                                                             .....RESPONDENT
                                            (BY SHRI SUBODH CHOUDHARY - ADVOCATE)

                                                  T h is appeal coming on for orders this day, t h e cou rt passed the
                                            following:
                                                                                ORDER

The present appeal is filed against order of conviction and sentence passed by II ASJ, Indore, District Indore in ST No. 500292/2013 on 15.10.2022 wherein the appellant has been convicted under Section 420, 467, & 471 of IPC and sentenced him to undergo RI for 4 years, 4 years, 1 year with fine of Rs.500/- under each sections with default stipulation.

Signature Not VerifiedDigitally signed by Prosecution case is that a private complaint was filed by respondent SAN SOUMYA RANJAN DALAI

Nilesh Jain alleging that, he resides at 154, Shikshak Nagar, Aerodrome Road, Date: 2023.03.03 18:08:13 IST

Indore and in the year 2000-01 he started a grocery shop in the name of Nakoda

Kirana, respondents used to purchase groceries for his shop from variou swhole sale Kirana shops situated at Siyaganj. Appellant is having a wholesale Kirana shop at Siyaganj in the name of M/s Arihant Traders. For having a business transaction with appellant he used to take cheques as a security. In the year 2001 respondent had purchased cumin from the appellant from which he had given Rs.10,000/- in cash and as a security had given a cheque of Rs.50,000/- bearing No.152230 dated 17-04-2001 of Indore Cloth Market Co- operative Bank, Indore. It is the further case of the complainant that on payment of the balance amount the cheque was to be returned back by the appellant.

It is further alleged by the respondent in the complaint without the prior

approval or permission of the respondent, appellant has presented the cheque for encashment which got bounced. When the respondent contacted the appellant he stated that it was by mistake that the cheque was presented for encashment. Later on the respondent closed the grocery shop. That the complainant after closing his grocery shop again asked the appellant for returning the cheque back which the appellant didn't. Later on the complainant received a summons from JMFC Indore for a complaint filed under Section 138 of NI Act by the appellant against the respondent which on enquiring by the respondent. It came to his knowledge that the appellant in order to extend the validity of his cheque made an interpolation on the cheque by writing the date as 17-04-2004 which was in fact 17-04-2001. The respondent on 05-092005 made a complaint to Central Kotwali and because of the inaction of police the respondent filed present complaint before the competent Court. The trial Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN Magistrate took cognizance for the offence under Sections 420, 466, 467 of the DALAI Date: 2023.03.03 18:08:13 IST

IPC and as the case was triable by Court of Sessions, the Sessions Court after

appreciating the evidence found the appellant guilty under above mentioned offences.

Parties have filed an IA No.13956/2022 for compromise. The said application IA No.13956/2022 under Section 320(2) of Cr.P.C. and IA No.13958/2022 for compromise. The said application was sent for verification before the Principal Registrar of this Court. After verification, a report has been submitted that the parties have voluntarily entered into compromise of their free will and there is no undue influence, pressure, force, duress and coercion. Though the offences under Section 420 of IPC is compoundable, but under Sections 467 and 471 of IPC is non-compoundable.

The Apex Court in the case of Gian Singh Vs. State of Punjab and Anr. reported in (2012) 10 SCC 303 after considering the the provisions of section 320 and 482 of the Cr.P.C held that the compounding was permitted in a non- compoundable offence. Relevant part of the order of the order reads as under :-

"Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.

B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji do illustrate the principle that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court has compounded the non-compoundable offences indirectly? We do not think Signature Not VerifiedDigitally signed by so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in SAN SOUMYA RANJAN DALAI Date: 2023.03.03 18:08:13 IST exercise of inherent power under Section 482. The two powers are distinct and different although the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment."

In a subsequent order, in the case of Narinder Singh and Ors Vs. State of Punjab And Anr passed in Criminal Appeal No.686/2014 dated 27.03.2014 after relying on the judgment passed in the case of Gian Singh (supra), the Apex Court permitted the compounding in a non-compoundable case and quashed the criminal proceedings.

After hearing learned counsel for the parties and taking into consideration that the parties have arrived at a compromise voluntarily without any threat, inducement or coercion and they have amicably resolved their disputes, I am of the view that no purpose would be served in sending the appellant in jail therefore, the application for compounding is allowed in view of the judgments passed by the Apex Court in the cases of Gian Singh and Narinder Singh (supra). The appellant is acquitted of all the charges. He shall be released forthwith, if not required in any other case. The bail bond of the appellant stands discharged.

With the aforesaid, the present appeal stands disposed off.

(VIJAY KUMAR SHUKLA) JUDGE soumya

Signature Not Verified VerifiedDigitally Digitally signed by SAN SOUMYA RANJAN DALAI Date: 2023.03.03 18:08:13 IST