Madras High Court
S.Athisayaraja vs T.Rajendhiran on 18 April, 2022
Crl.R.C(MD)No.291 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :18.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.291 of 2022
S.Athisayaraja ...Petitioner
Vs.
T.Rajendhiran ... Respondent
Prayer : This Criminal Revision has been filed under Section 397 r/w
401 of Criminal Procedure Code, to call for the records and to set aside
the order passed by the Additional District Judge, Srivilliputhur in
Crl.M.P.No.3 of 2022 in C.A.No.45 of 2020, dated 14.02.2022 and
consequently accept the compromise memo filed before the Court and
further direction to Additional District Court, Srivilliputtur to acquit the
petitioner/accused in the Criminal Appeal in C.A.No.45 of 2020 on the
file of the Additional District Court, Srivilliputhur.
For Petitioner : Mr.S.A.Ajmalkhan
For Respondent : Mr.R.Niresh Kumar
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Crl.R.C(MD)No.291 of 2022
ORDER
This petition has been filed to set aside the order passed by the
Additional District Judge, Srivilliputhur in Crl.M.P.No.3 of 2022 in
C.A.No.45 of 2020, dated 14.02.2022 and consequently accept the
compromise memo filed before the Court and further direct the learned
Additional District Court, Srivilliputtur to acquit the petitioner/accused
in the Criminal Appeal in C.A.No.45 of 2020, pending on the file of the
Additional District Court, Srivilliputhur.
2.The petitioner is an accused. On the complaint lodged by the
respondent herein alleged that the petitioner borrowed a sum of
Rs.2,50,000/- from the respondent to meet the medical expenses for his
wife on 20.10.2016. In order to repay the said amount, the petitioner has
issued a cheque for Rs.2,50,000/- vide cheque No.578894 drawn on the
State Bank of India, Srivilliputhur Branch, Virudhunagar. The said
cheque presented for collection and the same was returned with an
endorsement 'Insufficient Funds'. Hence, the respondent has lodged a
complaint.
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Crl.R.C(MD)No.291 of 2022
3.The trial Court found the petitioner's guilty and convicted
him for the offence under Section 138 of Negotiable Instruments Act,
and sentenced him to undergo imprisonment for a period of one year.
Aggrieved by the same, the petitioner had preferred an appeal in
C.A.No.45 of 2020 before the Additional District Court, Srivilliputhur.
While pending appeal, the petitioner has filed a petition in Crl.M.P.No.3
of 2022 in C.A.No.45 of 2020 under Section 147 of Negotiable
Instruments Act, to compound the appeal. However, it was dismissed as
not maintainable for the reasons that the said application was not signed
by the respondent herein. It is further observed that compounding of the
offence will happen only when both parties arrived at a settlement.
4.On perusal of records revealed that the respondent has also
filed a suit for recovery of the said money in O.S.No.83 of 2018 before
the Subordinate Court, Srivilliputhur on the strength of the very same
impugned cheque in the present case. Further on the date of borrowing,
the petitioner executed a pro-note for the said sum. The total borrowal
amount is a sum of Rs.2,50,000/. Even according to the respondent, the
petitioner has agreed to pay the sum with interest which rate of 1%.
While pending appeal, the petitioner wants to settle the entire amount
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Crl.R.C(MD)No.291 of 2022
and accordingly he offered a sum of Rs.5,00,000/- as full and final
settlement for the amount borrowed by him for Rs.2,50,000/-. Further
the respondent is not interested to settle the issue by compounding the
offence.
5.In this regard, the learned counsel for the petitioner relied
upon the judgment reported in (2018) 1 SCC 560 in the case of Meters
and Instruments Private Limited and Another Vs. Kanchan Mehta in
paragraph Nos.18.1, 18.2 and 18.3 as follows:-
''18.1.Offence under Section 138 of the
Act is primarily a civil wrong. Burden of proof is on
the accused in view of presumption under Section
139 but the standard of such proof is
''preponderance of probabilities''. The same has to
be normally tried summarily as per provisions of
summary trial under CrPC but with such variation
as may be appropriate to proceedings under Chapter
XVII of the Act. Thus read, principle of Section 258
CrPC. will apply and the court can close the
proceedings and discharge the accused on
satisfaction that the cheque amount with assessed
costs and interest is paid and if there is no reason to
proceed with the punitive aspect.
18.2.The object of the provision being
primarily compensatory, punitive element being
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Crl.R.C(MD)No.291 of 2022
mainly with the object of enforcing the
compensatory element, compounding at the initial
stage has to be encouraged but is not debarred at
later stage subject to appropriate compensation as
may be found acceptable to the parties or the court.
18.3.Though compounding requires
consent of both parties, even in absence of such
consent, the court, in the interests of justice, on
being satisfied that the complainant has been duly
compensated, can in its discretion close the
proceedings and discharge the accused''.
6.The Hon'ble Supreme Court of India revealed that the
principle of Section 258 Cr.P.C. will apply and the Court can close the
proceedings and discharge the accused on satisfaction that the cheque
amount with assessed costs and interest is paid and if there is no reason
to proceed with the punitive aspect. The object of the provision being
primarily compensatory, punitive element, being mainly with the object
of enforcing the compensatory element compounding at the initial stage
has to be encouraged but is not debarred at later stage subject to
appropriate compensation as may be found acceptable to the parties or
the Court. Further held that the compounding requires consent of both
parties, even in absence of such consent, the Court, in the interest of
justice, on being satisfied that the complainant has been duly
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Crl.R.C(MD)No.291 of 2022
compensated, can in its discretion close the proceedings and discharge
the accused.
7.In the case on hand, admittedly the petitioner has borrowed a
sum of Rs.2,50,000/- as loan on 01.10.2015. On the date of borrowal,
he executed pro-note for the said sum. In order to repay the said amount,
he issued a cheque for a sum of Rs.2,50,000/- and the same was
presented for collection. Since it was returned as insufficient funds, the
respondent has initiated the proceedings under Section 138 of
Negotiable Instruments Act. The trial Court found the petitioner's guilty
and convicted him. On the strength of the very same cheque and
pro-note the respondent has also filed a suit in O.S.No.83 of 2018, for
recover the amount before the Subordinate Court, Srivilliputhur and the
same is pending. Now the petitioner taken Demand Draft and produced
before this Court in favour of the respondent to the tune of Rs.5,00,000/-
including reasonable interest for the pro-note amount. This Court
satisfied with the amount, which ought to have been settled by the
petitioner herein by way of Demand Draft of Rs.5,00,000/- (Rupees Five
lakhs only) in favour of the respondent herein.
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Crl.R.C(MD)No.291 of 2022
8.In view of the above, the order passed by the learned
Additional District Judge, Srivilliputhur in Crl.M.P.No.3 of 2022 in
C.A.No.45 of 2020, dated 14.02.2022, is liable to be set aside and the
application filed for compounding offence under Section 147 of
Negotiable Instruments Act, is remanded back to the Appellate Court for
fresh consideration. The Appellate Court is directed to issue suitable
direction to the petitioner herein to deposit a sum of Rs.5,00,000/- to the
credit of C.C.No.127 of 2017 on the file of the learned Judicial
Magistrate, Rajapalayam and pass suitable orders as held by the Supreme
Court of India.
9.Accordingly, the Criminal Revision Case is allowed and the
order passed by the learned Additional District Judge, Srivilliputhur, in
Crl.M.P.No.3 of 2022 in C.A.No.45 of 2020, dated 14.02.2022, is hereby
set aside.
18.04.2022
Index : Yes/No
Internet : Yes/No
vsd
To
The Additional District Court,
Srivilliputtur.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.291 of 2022
G.K.ILANTHIRAIYAN, J.
vsd
Crl.R.C(MD)No.291 of 2022
18.04.2022
https://www.mhc.tn.gov.in/judis
