Madras High Court
M/S. S.L.Suhail Ahmed & Sons vs / on 23 January, 2025
Crl.R.C.No.109/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.01.2025
PRONOUNCED ON :23.01.2025
CORAM
THE HONOURABLE MR.JUSTICE SHAMIM AHMED
Crl.R.C.No.109 of 2022
1. M/s. S.L.Suhail Ahmed & Sons,
represented by its Authorised Signatory
L.Suhail Ahmed,
No.17, Karpuraq Street,
Periamet, Chennai 600 003.
2. L.Suhail Ahmed,
No.40,2 nd Floor,
Mannar Swamy Koil Street,
Pulianthope, Chennai 600 012. ... Petitioners
/vs/
1. M/s. Eastern Tech & Co.
represented by its Partner
Mr.V.N.Mohamed Hussain (deceased)
having office at Old No.328/5,
New No.106, TT.K.Road,
Royapettah, Chennai 600 014.
1/1 . Mohamed Tariq, S/o.Mohamed Hussain
1/2. Mohamed Feroz Noor, S/o.Mohamed Hussain
1/3. Farhath Yasmin, W/o.Aashik Ahamed
(Amended as per order of this court dated
19.12.2024) ... Respondents
Prayer : Criminal Revision Petition filed under section 397 and 401 of
1/39
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Crl.R.C.No.109/2022
Cr.P.C. To call for the records and set aside the orders passed by the learned
IV Additional Sessions Judge at Chennai in Crl.A.No.32 of 2017 on
07.12.2021 confirmed the conviction, the 2nd petitioner who is representing
1st petitioner undergo simple imprisonment for a period of 4 months and
directing to him to pay compensation of Rs.6,76,601/- to
respondents/complainant under section 357(3) of Cr.P.C., failing which, to
undergo simple imprisonment for one moth made by the judgment on
24.01.2017 in C.C.No.3617 of 2014 delivered by the learned fast Track
Court-I (Magistrate level), Egmore at Allikulam, Chennai against the
petitioners.
For Petitioner ... Mr.S.Chandranathan
For Respondent .... Mr.M. Rajkumar for
Mr.J.Thomas Saran Singh
ORDER
Heard Mr.S. Chandranathan learned counsel appearing for the
Revision Petitioners and Mr.M.Raj Kumar, learned counsel appearing for
the respondents and also this Court has taken the assistance of
Mr.A.Gopinath, learned Govt. Advocate (crl.side).
2. The instant Criminal Revision Case has been filed challenging the
conviction and sentence passed in C.A.No.32 of 2017 dated 07.12.2021 by
the learned IV Addl. Sessions Judge, Chennai, confirming the conviction and
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sentence made in C.C.No.3617 of 2014, dated 24.01.2017 passed by the
learned Fast Track Court-I (Magistrate Level) Egmore at Allikulam, Chennai.
3. The learned trial Judge has convicted the Revision
Petitioners/accused under section 138 of Negotiable Instruments Act and
sentenced the 2nd petitioner/A2 who is representing the 1st petitioner/A1 to
undergo SI for a period of four months and also directed him to pay a
compensation of Rs.6,76,601/- to the complainant, failing which, to undergo
SI for one month. The conviction and sentence imposed by the trial court was
also confirmed by the First Appellate Court.
4. The facts leading to filing of this Criminal Revision Case is as
follows;
(i)The 2nd petitioner/ A2, who is representing the 1st
petitioner/A1company, in order to discharge the legally enforceable debt that
arise during the course of business transaction between the revision
petitioners and the respondent company, issued three cheques in favour of
the respondent company as follows;
(a)Cheque No.111538, dated 20.12.2013 for a sum of Rs.1,25,000/-;
(b)Cheque No.111536, dated 02.11.2013 for a sum of Rs.4,23,951/-;
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and
(c) Chque No.111539, dated 27.12.2013 fo a sum of Rs.1,27,650/-
All drawn on Punjab National Bank, Periamet Branch, Chennai 600 003.
(ii) When the cheques issued by the Revision Petitioners were
presented for encashment by the respondent through its Bankers viz.,
Oriental Bank of Commerce, Spencer Plaza, Chennai on 28.01.2014, they
were returned with an endorsement 'Funds Insufficient' .
(iii) Hence the respondent issued a legal notice dated 10.02.2014
calling upon the revision petitioners to pay the dishonoured cheque amounts
within one month there from and the same was received by the revision
petitioners on 15.02.2014
(v) On receipt of notice, since the revision petitioners neither replied,
nor repaid the dishonoured cheque amounts, the respondent preferred a
complaint for the offence of section 138 of the Negotiable Instruments Act
against the revision petitioners.
5. After recording the sworn statement of the respondent and after
being satisfied that prima facie case has been made out to proceed further
against the Revision Petitioners for the offence under section 138 of NI Act,
the trial Court has issued summon to the 2nd Petitioner/A2. On the
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appearance of the 2nd Petitioner/A2, copies have been furnished and the
substance of allegation has been put to him. The 2nd Petitioner/A2 has
denied the allegation and has claimed to be tried.
6. After considering the arguments, the learned trial court has found
the Revision Petitioners guilty of the offence under section 138 of the
Negotiable Instruments Act and the 2nd petitioner/A2 representing 1st
petitioner/A1 has been convicted and sentenced to undergo SI for a period
of four months and also directed him to pay a compensation of Rs.6,76,601/-
to the respondent, failing which, he was sentenced to undergo SI for one
month.
7. Aggrieved by the judgment, the Revision Petitioners have preferred
the appeal in Crl.A.No.32 of 2017 before the IV Addl. Sessions Judge,
Chennai and the first appellate court dismissed the appeal vide judgment
and order dated 07.12.2021 by confirming the judgment of conviction and
sentence imposed by the trial court in C.C.No.3617 of 2014 and it directed
to secure the Revision Petitioner No.2/A2 to undergo the sentence and to
pay the compensation amount.
8. Challenging the conviction and sentence passed by the both courts
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below, the Revision Petitioners have preferred the present Criminal Revision
Case before this Court.
9. During the pendency of the present Criminal Revision, the parties
have entered into a Joint Compromise Memo dated 20.01.2025 which is
taken on record and as per the terms of the Joint Compromise Memo, the
following conditions were laid down between the parties which are quoted
as under;
JOINT COMPROMISE MEMO
1. Its submitted that in the year 2002, the 1st respondent
along with his father Mohamed Hussain and the 2nd
respondent all were joint together and started a partnership
business in the name and style of “EASTEN TECH & CO.'.
During the pendency of this revision, the respondent's father
Mohamed Hussain was passed away. Thereafter the legal
heirs i.e. Respondents 1 to 3 has filed a substitution petition
before this Hon'ble court in Crl.M.P.No.18297 of 2024 and
the same was allowed on 19.12.2024. The 1st respondent has
filing this compromise memo on behalf of him and other
respondents.
2. Its submitted that on 07.09.2013, the petitioner has
purchased goat suade goods for a worth of Rs.8,76,601/-.
Out of which, he has paid sum of Rs.2,00,000/- and
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remaining amount of Rs.6,76,601/- was not paid. To
discharge of his liability, he issued three cheques bearing
numbers i) 111538, dated 20.12.2013 for a sum of
Rs.1,25,000/-, ii) 111536 dated 02.11.2013 for a sum of
Rs.4,23,951/-, iii) 111539 dated 27.12.2013 for a sum of
Rs.1,27,650/- all the cheques was drawn on Punjab National
Bank, Periamet Branch in favour fo the respondent company
namely M/s.Easten Tech & Co. All the above said cheques
was presented for collection and the same was returned as
“Funds Insufficient”.
3. Its submitted that complaint under secion 138 of N.i. Act
has filed against the petitioner in C.C.No.3617 of 2014 on the
Fast Track Court-I Magistrate Level at Allikulam, Egmore,
Chennai. The Trial Court was convicted the petitioner to
undergo 4 months S.I. and to pay compensation of
Rs.6,76,601/-, I.D 1 month S.I. Aggrieved over the same, the
petitioners preferred an appeal before the IV Additional
Sessions Judge at Chennai in Crl.A.No.32/2017 and the same
was dismissed on 07.12.2021 and confirming the sentence
passed by the trial court.
4. Its submitted that hereafter at the intervention of the family
members, friends and well wishers of the both the families
into the issues between the petitioner and the respondents,
out of Rs.6,76,601/- the respondents agreed for a settlement
for sum of Rs.4,20,001. Now the matter have been amicably
settled between them. On 17.12.2024, the petitioner drawn
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two Demand Drafts in bearing number 1) 159017 for sum of
Rs.95,000/- ii) 159018 for a sum of Rs.57,341/- in favour of
1st respondent, the 1st respondent also received the same. The
remaining amount of Rs.2,67,660/- was deposited by the
petitioner before the trial court while preferring appeal
before the lower appellate court and while preferring this
revision before this Hon'ble Court.
5. its submitted that the reaming agreed settlement amount
sum of Rs.2,67,660/- was lying before the trial court. The
petitioner has no objection for the 1st respondent to withdraw
the above said amount along with an interest before the trial
court.
6. It is submitted that since the matter was compromised
between the parties, the conviction imposed against the
petitioner may be set aside.
It is prayed this Hon'ble Court may be pleased to accept the
joint compromise memo filed by the both the parties and
same shall be recorded and set aside the judgment passed in
C.C.No.3617 of 2014 dated 24.01.2017 on the Fast Track
Court-I, Magistrate Level at Allikulam, Egmore, Chennai,
confirmed in Crl.A.No.32/2017 dated 07.12.2021 on the file
of IV Additional sessions Judge at Chennai.
10. Learned counsel for the Revision Petitioners submits that pending
Criminal Revision, both the parties have entered into a Joint Compromise
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Memo dated 20.01.2025 to the effect that the Criminal Revision case shall
be settled in accordance with the terms and conditions as contained therein.
11. Learned counsel for the Revision Petitioners further submits that in
terms of Joint Compromise Memo dated 20.01.2025, out of the disputed
cheque amount of Rs.6,76,601/-, the parties have agreed for a settlement for
sum of Rs.4,20,001. On 17.12.2024, two demand drafts bearing Nos.159017
and 159018, respectively for a sum of Rs.95,000/- and Rs.57,341/- were
drawn by the revision petitioners in favour of the 1st respondent and the 1st
respondent has also received the said amounts. In respect of the balance
amount of Rs.2,67,660/-, permission of this court is sought to withdraw the
amount of Rs.2,67,660 /- which was already deposited before the trial court
by the revision petitioners while preferring appeal before the Lower
Appellate Court and while preferring this revision before this Court. The
revision petitioners/A1 & A2 have no objection for the 1 st respondent to
withdraw the abovesaid amount along with interest from the trial court. He
prayed that since the matter was compromised between the parties, the
conviction imposed against the revision petitioners may be set aside.
12. Mr.M.Rajkumar, the learned counsel for the respondents submits
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that during the pendency of the Criminal Revision, the partner of the
respondent company viz., V.N.Mohamed Hussain, who is representing
respondent company died and subsequently, his legal heirs were impleaded
as respondents. He further submits that the respondents herein admits that
the parties have agreed for a settlement for sum of Rs.4,20,001/- and they
also admits receipt of a sum of Rs.95,000/- and Rs.57,341/- from the revision
petitioners by way of Demand Drafts and in respect of the balance amount of
Rs.2,67,660 /-, he seeks permission of this court for the respondents to
withdraw the amount lying before the trial court.
13. Learned counsel for the Revision Petitioners further submits that
the present Revision has been filed in the year 2022 before this Court and on
the basis of change in circumstances, as the parties have entered into
Memorandum of Compromise, it was prayed to this Court to compound the
offence. It was further argued by the learned counsel for the Revision
Petitioners that this Court has inherent powers to compound the offence, so
that, ends of justice could be secured as the object of Negotiable Instruments
Act is primarily compensatory and not punitive and moreover Section 147
of NI Act would have an overriding effect on section 320 Cr.P.C.,
irrespective of which stage, the parties are compromising with the kind leave
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of this Hon'ble Court.
14. In support of his arguments, learned counsel for the Revision
Petitioners have submitted that in the case of Damodar S. Prabhu vs. Sayed
Babalal H reported at 2010 (2) SCC (Cri) 1328, the Hon'ble Apex Court had
formulated the guidelines for compounding the offence under section 138
N.I. Act wherein in para 21, it was pleased to observe as under :
"With regard to the progression of litigation in cheque
bouncing cases, the learned Attorney General has urged this
Court to frame guidelines for a graded scheme of imposing
costs on parties who unduly delay compounding of the
offence. It was submitted that the requirement of deposit of
the costs will act as a deterrent for delayed composition,
since at present, free and easy compounding of offences at
any stage, however belated, gives an incentive to the drawer
of the cheque to delay settling the cases for years. An
application for compounding made after several years not
only results in the system being burdened but the
complainant is also deprived of effective justice. In view of
this submission, we direct that the following guidelines be
followed:-
THE GUIDELINES
(i) In the circumstances, it is proposed as follows:
(a) That directions can be given that the Writ of Summons be
suitably modified making it clear to the accused that he
could make an application for compounding of the offences
at the first or second hearing of the case and that if such an
application is made, compounding may be allowed by the
court without imposing any costs on the accused.
(b) If the accused does not make an application for
compounding as aforesaid, then if an application for
compounding is made before the Magistrate at a subsequent
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stage, compounding can be allowed subject to the
condition that the accused will be required to pay 10% of the
cheque amount to be deposited as a condition for
compounding with the Legal Services Authority, or such
authority as the Court deems fit.
(c) Similarly, if the application for compounding is made
before the Sessions Court or a High Court in revision or
appeal, such compounding may be allowed on the condition
that the accused pays 15% of the cheque amount by way of
costs.
(d) Finally, if the application for compounding is made
before the Supreme Court, the figure would increase to 20%
of the cheque amount."
15. Learned counsel for the Revision petitioners also submitted that in
the case of M/s Meters and Instruments Private Limited and another vs.
Kanchan Mehta reported at 2017 (7) Supreme 558, the Hon'ble the Apex
Court in para 18, was pleased to observe as under :
i) Offence under Section 138 of the Act is primarily a civil
wrong. Burden of proof is on accused in view 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 the Cr.P.C. but with such variation as may be
appropriate to proceedings under Chapter XVII of the Act.
Thus read, 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.
(ii)The object of the provision being primarily
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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.
(iii)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.
(iv)Procedure for trial of cases under Chapter XVII of the
Act has normally to be summary. The discretion of the
Magistrate under second proviso to Section 143, to hold
that it was undesirable to try the case summarily as
sentence of more than one year may have to be passed, is
to be exercised after considering the further fact that apart
from the sentence of imprisonment, the Court has
jurisdiction under Section 357(3) Cr.P.C. to award
suitable compensation with default sentence under Section
64 IPC and with further powers of recovery under Section
431 Cr.P.C. With this approach, prison sentence of more
than one year may not be required in all cases.
(v) Since evidence of the complaint can be given on
affidavit, subject to the Court summoning the person
giving affidavit and examining him and the bank's slip
being prima facie evidence of the dishonor of cheque, it is
unnecessary for the Magistrate to record any further
preliminary evidence. Such affidavit evidence can be read
as evidence at all stages of trial or other proceedings. The
manner of examination of the person giving affidavit can
be as per Section 264 Cr.P.C. The scheme is to follow
summary procedure except where exercise of power under
second proviso to Section 143 becomes necessary, where
sentence of one year may have to be awarded and
compensation under Section 357(3) is considered
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inadequate, having regard to the amount of the cheque, the
financial capacity and the conduct of the accused or any
other circumstances'.
16. Learned counsel for the Revision Petitioners further has relied
upon the judgment of Gujarat High Court in the case of Kripal Singh Pratap
Singh Ori vs. Salvinder Kaur Hardip Singh reported at 2004 Crl. L. J. 3786
wherein, the Gujarat High Court was pleased to observe as under:-
31. In the circumstances, it is hereby declared that the
compromise arrived between the parties to this litigation out
of court is accepted as genuine and the order of conviction
and sentence passed by the learned JMFC, Vadodara and
confirmed in appeal by the learned Sessions Judge, Fast
Track Court, Vadodara, therefore, on the given set of facts
are hereby quashed and set aside as this court intends,
otherwise to secure the ends of justice as provided under
section 482 Cr.P.C. Obviously the order disposing Revision
Application would not have any enforceable effect."
17. Learned counsel for the Revision Petitioners has also relied upon
the judgment of Hon'ble the Apex Court in the case of Vinay Devanna
Nayak vs. Ryot Seva Sahkari Bank Limited reported at AIR 2008 SC 716
wherein the Hon'ble Apex Court was pleased to observe as under :
"18. Taking into consideration even the said provision
(Section 147) and the primary object underlying Section
138, in our judgment, there is no reason to refuse
compromise between the parties. We, therefore, dispose
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of the appeal on the basis of the settlement arrived at
between the appellant and the respondent.
19. For the foregoing reasons the appeal deserves to be
allowed and is accordingly allowed by holding that since
the matter has been compromised between the parties and
the amount of Rs.45,000/- has been paid by the appellant
towards full and final settlement to the respondent-bank
towards its dues, the appellant is entitled to acquittal.
The order of conviction and sentence recorded by all
courts is set aside and he is acquitted of the charge
levelled against him."
18. Learned counsel for the Revision Petitioners has argued that the
law regarding compounding of offences under the N.I. Act is very clear and
is no more resintegra and the offences under the N.I. Act can be compounded
even at any stage of the proceedings. He submits that in terms of the
aforesaid law laid down by the Hon'ble Supreme Court, the parties may be
permitted to compound the offence and the conviction of the petitioner be set
aside.
19. Per contra, Mr.A.Gopinath, the learned Govt. Advocate (crl.side)
who appeared for the State and assisted this Court in the matter, has
vehemently opposed the submissions made by the learned counsel for the
Revision Petitioner and submits that the Revision Petitioner has already been
convicted by the learned trial court and the conviction order had already been
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upheld by the Appellate Court in the appeal.
20. The learned Govt. Advocate (crl.side) also further submitted that
the appeal has been rejected on merit and the Revision Petitioners were
convicted, then where the parties or any one of them can be permitted to
place compromise and to get the order of acquittal from the Court is the
question. He further submitted that the present case is nothing, but a gross
misuse of the process of law and thus sentence cannot be compounded on
the basis of compromise as filed by the parties.
21. I have heard the learned counsel for the Revision Petitioners,
learned counsel for the respondents and learned Govt. Advocate (crl.side)
appearing for the State and perused the materials placed on record.
22. Considering the facts as narrated above, the following question
arose for consideration.
'Whether the order passed by the Appellate Court confirming
the conviction of the trial court under section 138 of Negotiable
Instruments Act can be nullified by the High Court on the basis
of compromise entered between the parties'
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23. Before answering the aforesaid question as framed, I shall
examine the relevant provision of the Cr.P.C., as well as the Negotiable
Instrument Act. I may extract Section 320 of Cr.P.C., and section 147 of
Negotiable Instruments Act.
Section 320 Cr.P.C. - Compounding of Offences -
1) The offences punishable under the sections of the Indian
Penal Code (45 of 1860), specified in the first two columns
of the Table next following may be compounded by the
persons mentioned in the third column of that Table -
2) The offences punishable under the Sections of the Indian
Penal Code (45 of 1860), specified in the first two columns
of the Table next following may, with the permission of the
Court before which any prosecution for such offence is
pending be compounded by the persons mentioned in the
third column of that Table -
3) When any offence is compoundable under this section,
the abetment of such offence or an attempt to commit such
offence (when such attempt is itself an offence) may be
compounded in like manner.
4) (a) When the person who would otherwise be competent
to compound an offence under this section is under the age
of eighteen years or is an idiot or a lunatic, any person
competent to contract on his behalf may, with the
permission of the Court, compound such offence.
(b) When the person who would otherwise be competent to
compound an offence under this section is dead, the legal
representative, as defined in the Code of Civil Procedure,
1908 (5 of 1908) of such person may, with the consent of
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the Court, compound such offence.
5) When the accused has been committed for trial or when
he has been convicted and an appeal is pending, no
composition for the offence shall be allowed without the
leave of the Court to which he is committed, or as the case
may be, before which the appeal is to be heard.
6) A High Court or Court of Session acting in the exercise
of its powers of revision under Section 401 may allow any
person to compound any offence which such person is
competent to compound under this section.
7) No offence shall be compounded if the accused is, by
reason of a previous conviction, liable either to enhanced
punishment or to a punishment of a different kind for such
offence.
8) The composition of an offence under this section shall
have the effect of an acquittal of the accused with whom
the offence has been compounded.
9) No offence shall be compounded except as provided by
this section.
Section 147 of the Negotiable Instrument Act :’
"Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), every offence punishable under
this Act shall be compoundable."
24. I have to refer the compromise deed which is on the record for
proper adjudication :-
JOINT COMPROMISE MEMO
1. Its submitted that in the year 2002, the 1 st
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respondent along with his father Mohamed Hussain and
the 2nd respondent all were joint together and started a
partnership business in the name and style of “EASTEN
TECH & CO.'. During the pendency of this revision, the
respondent's father Mohamed Hussain was passed away.
Thereafter the legal heirs i.e. Respondents 1 to 3 has filed
a substitution petition before this Hon'ble court in
Crl.M.P.No.18297 of 2024 and the same was allowed on
19.12.2024. The 1st respondent has filing this compromise
memo on behalf of him and other respondents.
2. Its submitted that on 07.09.2013, the petitioner
has purchased goat suade goods for a worth of
Rs.8,76,601/-. Out of which, he has paid sum of
Rs.2,00,000/- and remaining amount of Rs.6,76,601/- was
not paid. To discharge of his liability, he issued three
cheques bearing numbers i) 111538, dated 20.12.2013 for
a sum of Rs.1,25,000/-, ii) 111536 dated 02.11.2013 for a
sum of Rs.4,23,951/-, iii) 111539 dated 27.12.2013 for a
sum of Rs.1,27,650/- all the cheques was drawn on Punjab
National Bank, Periamet Branch in favour fo the
respondent company namely M/s.Easten Tech & Co. All
the above said cheques was presented for collection and
the same was returned as “Funds Insufficient”.
3. Its submitted that complaint under secion 138 of
N.i. Act has filed against the petitioner in C.C.No.3617 of
2014 on the Fast Track Court-I Magistrate Level at
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Allikulam, Egmore, Chennai. The Trial Court was
convicted the petitioner to undergo 4 months S.I. and to
pay compensation f Rs.6,76,601/-, I.D 1 month S.I.
Aggrieved over the same, the petitioners preferred an
appeal before the IV Additional Sessions Judge at Chennai
in Crl.A.No.32/2017 and the same was dismissed on
07.12.2021 and confirming the sentence passed by the trial
court.
4. Its submitted that herafter at the intervention of
the family members, friends and well wishers of the both
the families into the issues between the petitioner and the
respondents, out of Rs.6,76,601/- the respondents agreed
for a settlement for sum of Rs.4,20,001. Now the matter
have been amicably settled between them. On
17.12.2024, the petitioner drawn two Demand Drafts in
bearing number 1) 159017 for sum of Rs.95,000/- ii)
159018 for a sum of Rs.57,341/- in favour of 1st
respondent, the 1st respondent also received the same.
The remaining amount of Rs.2,67,660/- was deposited by
the petitioner before the trial court while preferring
appeal before the lower appellate court and while
preferring this revision before this Hon'ble Court.
5. its submitted that the reaming agreed settlement
amount sum of Rs.2,67,660/- was lying before the trial
court. The petitioner has no objection for the 1st respondent
to withdraw the above said amount along with an interest
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before the trial court.
6. It is submitted that since the matter was
compromised between the parties, the conviction imposed
against the petitioner may be set aside.
It is prayed this Hon'ble Court may be pleased to accept
the joint compromise memo filed by the both the parties and
same shall be recorded and set aside the judgment passed
in C.C.No.3617 of 2014 dated 24.01.2017 on the Fast Track
Court-I, Magistrate Level at Allikulam, Egmore, Chennai,
confirmed in Crl.A.No.32/2017 dated 07.12.2021 on the file
of IV Additional sessions Judge at Chennai.
25. It is well settled that inherent power of the Court can be exercised
only when no other remedy is available to the litigants and nor a specific
remedy as provided by the statute. It is also well settled that if an effective,
alternative remedy is available, the High Court will not exercise its inherent
power, especially when the Revision Petitioner may not have availed of that
remedy. The power can be exercised by the High Court to secure the ends of
justice, prevent abuse of the process of any court and to make such orders as
may be necessary to give effect to any order under this Code or Act,
depending upon the facts of the given case. This Court can always take note
of any miscarriage of justice and prevent the same by exercising its power.
These powers are neither limited, nor curtailed by any other provision of the
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Code or Act. However, such inherent powers are to be exercised sparingly
and with caution
26. In the instant case, it is true that the appeal was dismissed and the
conviction and sentence was upheld by the appellate court, but it cannot be
lost sight of the fact that this Court has power to intervene in exercise of its
power only with a view to do the substantial justice or to avoid a miscarriage
and the spirit of compromise arrived at between the parties. This is perfectly
justified and legal too.
27. I have considered the judgments cited by the learned counsel for
the Revision Petitioner as well as by the learned Counsel for the State and
other decisions of the Hon'ble Apex Court and I do not think it necessary to
enlist those decisions which are taken into consideration for the purpose of
the present proceedings.
28. In the instant case, the Revision Petitioners is invoking the inherent
power of this court after dismissal of the appeal confirming his conviction
and sentence. In these circumstances, I have to examine as to whether for
entertaining the aforesaid case, any special circumstances are made out or
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not, so it can be legitimately argued and inferred and held that in all cases
where the Revision Petitioner is able to satisfy this Court that there are
special circumstances which can be clearly spelt out subsequent proceeding
invoking inherent power of this court can be modified and cannot be thrown
away on that technical argument as to its sustainability once the contesting
parties entered into subsequent compromise.
29. In the case of Krishan Vs. Krishnaveni, reported in (1997) 4 SCC
241, Hon'ble the Apex Court has held that though the inherent power of the
High Court is very wide, yet the same must be exercised sparingly and
cautiously particularly in a case where the applicant is shown to have already
invoked the revisional jurisdiction under section 397 of the Code. Only in
cases where the High Court finds that there has been failure of justice or
misuse of judicial mechanism or procedure, sentence or order was not
correct, the High Court may in its discretion prevent the abuse of process or
miscarriage of justice by exercising its power.
30. In the case of S.W. Palankattkar & others Vs. State of Bihar,
2002 (44) ACC 168, it has been held by the Hon'ble Apex Court that
quashing of the criminal proceedings is an exception than a rule. The
inherent powers of the High Court itself envisages three circumstances under
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which the inherent jurisdiction may be exercised:-(i) to give effect an order
under the Code, (ii) to prevent abuse of the process of the court ; (iii) to
otherwise secure the ends of justice. The power of High Court is very wide
but should be exercised very cautiously to do real and substantial justice for
which the court alone exists.
31. For adjudicating the instant case, the facts as stated hereinabove are
very relevant. Here, the Revision Petitioner has attempted to invoke the
jurisdiction of this court.
32. I am not in agreement that when the adjudication of a criminal
offence has reached to the state of revisional level, there cannot be any
compromise without permission of the court in all case including the offence
punishable under 'N.I. Act' or the offence mentioned in Table-1 (one) can be
compounded only if High Court or Court of Sessions grants permission for
such purpose. The Court presently, concerned with an offence punishable
under 'N.I. Act'.
33. It is evident that the permissibility of the compounding of an
offence is linked to the perceived seriousness of the offence and the nature of
the remedy provided. On this point I can refer to the following extracts from
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an academic commentary [Cited from : K.N.C. Pillai, R.V. Kelkar's Criminal
Procedure, 5th Edition :
"17.2 - compounding of offences – A crime is essentially a
wrong against the society and the State. Therefore, any
compromise between the accused person and the individual
victim of the crime should not absolve the accused from
criminal responsibility. However, where the offences are
essentially of a private nature and relatively not quite
serious, the Code considers it expedient to recognize some of
them as compoundable offences and some others as
compoundable only with the permission of the court…"
34. Section 147 of NI Act begins with a non obstante clause and
such clause is being used in a provision to communicate that the
provision shall prevail despite anything to the contrary in any other or
different legal provisions. So, in light of the compass provided, a dispute
in the nature of complaint under section 138 of N.I. Act, can be settled by
way of compromise irrespective of any other legislation including
Cr.P.C. In general and section 320 (1)(2) or (6) of the Cr.P.C. in
particular. The scheme of section 320 Cr.P.C. deals mainly with
procedural aspects; but it simultaneously crystallizes certain enforceable
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rights and obligation. Hence, this provision has an element of substantive
legislation and therefore, it can be said that the scheme of section 320
does not lay down only procedure; but still, the status of the scheme
remains under a general law of procedure and as per the accepted
proposition of law, the special law would prevail over general law. For
the sake of convenience, I would like to quote the observations of
Hon'ble the Apex Court in the case of Municipal Corporation, Indore vs.
Ratnaprabha reported in (AIR 1977 SC 308) which reads as under :
"As has been stated, clause (b) of section 138 of the Act
provides that the annual value of any building shall
"notwithstanding anything contained in any other law for
the time being in force" be deemed to be the gross annual
rent for which the building might "reasonably at the time of
the assessment be expected to be let from year to year"
While therefore, the requirement of the law is that the
reasonable letting value should determine the annual value
of the building, it has also been specifically provided that
this would be so "notwithstanding anything contained in
any other law for the time being in force". It appears to us
that it would be a proper interpretation of the provisions of
clause (b) of Section 138 of the Act to hold that in a case
where the standard rent of a building has been fixed under
Section 7 of the Madhya Pradesh Accommodation Control
Act, and there is nothing to show that there has been fraud
or collusion, that would be its reasonable letting value, but,
where this is not so, and the building has never been let out
and is being used in a manner where the question of fixing
its standard rent does not arise, it would be permissible to
fix its reasonable rent without regard to the provisions of
the Madhya Pradesh Accommodation Control Act, 1961.
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This view will, in our opinion, give proper effect to the non-
obstante clause in clause (b) with due regard to its other
provision that the letting value should be "reasonable"
35. The expression 'special law' means a provision of law, which is not
applicable generally but which applies to a particular or specific subject or
class of subjects. Section 41 of Indian Penal Code stands on the same footing
and defines the phrase special law. In this connection I would like to quote
the well accepted proposition of law emerging from various observations
made by the Hon'ble Apex Court in different decisions as a gist of the
principle and it can be summarised as under:
"When a special law or a statute is applicable to a
particular subject, then the same would prevail over a
general law with regard to the very subject, is the
accepted principle in the field of interpretation of statute."
36. In reference to offence under section 138 of N.I. Act read with
section 147 of the said Act, the parties are at liberty to compound the
matter at any stage even after the dismissal of the revision/appeal. Even
a convict undergoing imprisonment with the liability to pay the amount
of fine imposed by the court and/or under an obligation to pay the
amount of compensation if awarded, as per the scheme of N.I. Act, can
compound the matter. The complainant i.e. person or persons affected
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can pray to the court that the accused, on compounding of the offence
may be released by invoking jurisdiction of this court. If the parties are
asked to approach the Apex Court then, what will be situation, is a
question which is required to be considered in the background of
another accepted progressive and pragmatic principle accepted by our
courts that if possible, the parties should be provided justice at the door
step. The phrase "justice at the door step" has taken the court to think
and reach to a conclusion that it can be considered and looked into as
one of such special circumstances for the purpose of compounding the
offence under section 147 of the N. I. Act.
37. It is also well settled that the operation or effect of a general Act
may be curtailed by special Act even if a general Act contains a non obstante
clause. But here is not a case where the language of section 320 Cr.P.C.
would come in the way in recording the compromise or in compounding the
offence punishable under section 138 of the N.I. Act. On the contrary
provisions of section 147 of N.I. Act though starts with a non obstante
clause, is an affirmative enactment and this is possible to infer from the
scheme that has overriding effect on the intention of legislature reflected in
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section 320 Cr.P.C.
38. Merely because the litigation has reached to a revisional stage or
that even beyond that stage, the nature and character of the offence would
not change automatically and it would be wrong to hold that at revisional
stage, the nature of offence punishable under Section 138 of the N.I. Act
should be treated as if the same is falling under table-II of Section 320 IPC. I
would like to reproduce some part of the statement of objects and reasons of
the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act,
"The Negotiable Instrument Act 1881 was amended by the
Banking,Public Financial Institutions and Negotiable
Instrument Laws (Amendment) Act, 1988 wherein a new
Chapter XVII was incorporated for penalties in case of
dishonour of cheques due to insufficiency of funds in the
account of the drawer of the cheque. These provisions were
incorporated with a view to encourage the culture of use of
cheques and enhancing the credibility of the instrument. The
existing provisions in the Negotiable Instrument Act, 1981,
namely Section 138 to 142 in ChapterXVII have been found
deficient in dealing with dishonour of cheques. Notonly the
punishment provided in the Act has proved to be inadequate,
theprocedure prescribed for the courts to deal with such
matters has beenfound to be cumbersome. The Courts are
unable to dispose of such casesexpeditiously in a time bound
manner in view of the procedure contained in the Act.
2. A large number of cases are reported to be pending under
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Sections 138 and 142 of the Negotiable Instruments Act in
various courts in the country. Keeping in view the large
number of complaints under the saidAct, pending in various
courts, a Working Group was constituted to review Section
138 of the Negotiable Instruments Act, 181 and make
recommendations as to what changes were needed to
effectively achieve the purpose of that Section.
3. ..........…
4. Keeping in view the recommendations of the Standing
Committee on
finance and other R/SCR.A/2491/2018 ORDER representations,
it has
been decided to bring out, inter alia the following amendments
in the
Negotiable Instrument Act 1881, namely.
(i) xxxxxx
(ii) xxxxxx
(iii) xxxxxx
(iv) to prescribe procedure for dispensing with preliminary
evidence of
the complainant.
(v) xxxxxx
(vi) xxxxx
(vii) to make the offences under the Act compoundable. .....…
5. xxxxxx
6. The Bill seeks to achieve the above objects."
39. In a commentary the following observations have been made with
regard to offence punishable under section 138 of the N.I. Act. [ Cited from :
Arun Mohan, Some thoughts towards law reforms on the topic of Section 138
Negotiable Instrument Act -Tackling an avalanche of cases] :
"... ... Unlike that for other forms of crime, the punishment
here (in so far as the complainant is concerned) is not a
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means of seeking retribution,but is more a means to ensure
payment of money. The complainant's interest lies primarily in
recovering the money rather than seeing the drawer of the
cheque in jail. The threat of jail is only a mode to ensure
recovery. As against the accused who is willing to undergo a
jail term, there is little available as remedy for the holder of
the cheque. If we were to examine the number of complaints
filed which were 'compromised' or 'settled' before the final
judgment on one side and the cases which proceeded to
judgment and conviction on the other, we will find that the
bulk was settled and only a miniscule number continued."
40. It is quite obvious that with respect to the offence of dishonour of
cheques, it is the compensatory aspect of the remedy which should be given
priority over the punitive aspect.
41. So the intention of the legislature and object of enacting
"Banking", Public Financial Institutions and the Negotiable Instrument Laws
(Amended Act) 1988 and subsequent enactment, i.e., Negotiable Instruments
(Amendment & Miscellaneous Provisions Act 2002 leads this Court to a
conclusion that the offence made punishable under Section 138 of N.I. Act is
not only an offence qua property but it is also of the nature of an economic
offence, though not covered in the list of statutes enacted in reference to
Section 468 of Cr.P.C. Thus, the parties, in reference to offence under
Section 138 N.I. Act read with Section 147 of the said Act are at liberty to
compound the matter at any stage even after the dismissal of the proceedings.
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42. In the instant case, the problem herein is with the tendency of
litigants to belatedly choose compounding as a means to resolve their
dispute, furthermore, the arguments on behalf of the Govt. Advocate
(crl.side) on the fact that unlike Section 320 Cr.P.C., Section 147 of the
Negotiable Instruments Act provides no explicit guidance as to what stage
compounding can or cannot be done and whether compounding can be done
at the instance of the complainant or with the leave of the court.
43. I am also conscious of the view that judicial endorsement of the
above quoted guidelines as given in the case of Damodar S. Prabhu (supra)
could be seen as an act of judicial law making and therefore an intrusion into
the legislative domain. It must be kept in mind that Section 147 of the Act
does not carry any guidance on how to proceed with the compounding of
offences under the Act. I have already explained that the scheme
contemplated under Section 320 of the Cr.P.C. cannot be followed in the
strict sense.
44. In view of the aforesaid discussion, the parties, in reference to
offence under Section 138 N.I. Act read with Section 147 of the said Act are
at liberty to compound the matter at any stage. The complainant i.e. the
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person or persons affected can pray to the court that the accused, on
compounding of the offence may be released by invoking inherent
jurisdiction of this Court.
45. Generally, the powers available would not have been exercised
when a statutory remedy under the law is available, however, considering the
peculiar set of facts and circumstances it would not be in the interest of
justice to relegate the parties to the court. Additionally when both the parties
have invoked the jurisdiction of this Court and there is no bar on exercise of
powers and the inherent powers of this court can always be invoked for
imparting justice and bringing a quietus to the issue between the parties.
46. As discussed above, the court is inclined to hold accordingly only
because there is no formal embargo in section 147 of the N.I. Act. This
principle would not help any convict in any other law where other applicable
independent provisions are existing as the offence punishable under section
138 of the N.I. Act is distinctly different from the normal offences made
punishable under Chapter XVII of IPC (i.e. the offences qua property).
47. In view of the observations and in view of the guidelines as laid
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down in the case of Damodar S. Prabhu (Supra) and also in view of the
observations made in the judgment referred above and taking into account
the fact that the parties have settled the dispute amicably by way of
compromise, this Court is of the view that the compounding of the offence as
required to be permitted.
48. Accordingly, the present Criminal Revision Case is disposed of in
terms of Memorandum of Compromise arrived at between the parties to this
litigation out of Court. The impugned conviction and sentence passed in
C.A.No.32 of 2017, dated 07.12.2021 by the learned IV Addl. Sessions
Judge at Chennai, confirming the conviction and sentence made in
C.C.No.3617 of 2014, dated 24.01.2017 by the learned Fast Track Court-I
(Magistrate Level), Egmore, Allikulam, Chennai are hereby modified. The
conviction and sentence under section 138 of the Negotiable Instruments Act
in C.C.No.3617 of 2014 stands anulled as this Court intends, otherwise to
secure the ends of justice. The Revision Petitioner shall be treated as
acquitted on account of compounding of the offence with the
complainant/person affected.
49.While disposing of this Criminal Revision Case by recording the
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Joint Memorandum of Compromise entered into between the parties, the
learned counsel for the Revision Petitioners submitted that an amount of
Rs.2,67,660/- was already deposited before the trial court by the revision
petitioners while preferring appeal before the Lower Appellate Court and
while preferring this revision before this Court.
50. Therefore he requests this Court to grant permission to the
respondents to withdraw the entire sum of Rs.2,67,660/- lying before the trial
court and a direction may be issued to that effect.
51. In view of the above, the respondents namely 1/1. Mohamed Tariq,
1/2. Mohamed Feroz Noor and 1/3. Farhath Yasmin who are the legal heirs
of deceased respondent No.1 namely V.N. Mohamed Hussain, are
permitted to withdraw Rs.2,67,660/- (Rupees two lakhs and sixty seven
thousand and six hundred and sixty only) which was already deposited by
the Revision Petitioners before the trial court along with accrued interest, if
any, from the trial court within a period of four weeks from the date of
receipt of a certified copy of this order along with appropriate application
duly signed by respondent Nos.1/1, 1/2 and 1/3.
52. Office is directed to communicate this order to the learned trial
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court concerned immediately for necessary compliance and information.
53. In the result,
● The Criminal Revision Case is disposed of in terms of Joint
Memorandum of Compromise dated 20.01.2025.
● The impugned conviction and sentence passed in C.A.No.32 of
2017 dated 07.12.2021 by the learned IV Addl. Sessions
Judge, Chennai confirming the conviction and sentence made
in C.C.No.3617 of 2014, dated 24.01.2017 by the learned Fast
Track Court-I, Magistrate Level at Allikulam are hereby
modified.
● The conviction and sentence imposed on the Revision
Petitioners by both the courts below stands anulled.
● The Revision Petitioners shall be treated as acquitted on
account of compounding of the offence with the
complainant/respondent.
● The respondents -1/1. Mohamed Tariq, 1/2. Mohamed Feroz
Noor and 1/3. Farhath Yasmin/legal heirs of the deceased
respondent No.1 namely V.N.Mohamed Hussain are
permitted to withdraw Rs.2,67,660 /- already deposited by the
Revision Petitioners before the trial court along with accrued
interest, if any, from the trial court within a period of four
weeks from the date of receipt of a certified copy of this order
on making appropriate application duly signed by respondents
-1/1, 1/2 and 1/3 before the trial court.
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23.01.2025
msr
Index:yes/no
Internet: Reportable
To
1. The IV Addl. Sessions Judge, Chennai
2. The Fast Track Court-I, Magistrate Level at Allikulam, Chennai.
SHAMIM AHMED, J.
msr
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Pre-delivery order made in
23.01.2025
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PRE-DELIVERY ORDER IN CRL.RC.285/2021
TO
THE HON'BLE MR.JUSTICE SHAMEED AHMED
Most respectfully submitted
M.Sasirekha,
PS to Hon'ble Judges
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