Punjab-Haryana High Court
Gian Chand Bains vs State Of Haryana And Another on 14 January, 2025
Neutral Citation No:=2025:PHHC:004144
CRR-1598-2024 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
276
CRR-1598-2024 (O&M)
Date of decision: 14.01.2025
GIAN CHAND BAINS
....PETITIONER
V/s
STATE OF HARYANA AND ANOTHER
....RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SUMEET GOEL
Present: Mr. Jaspreet Kaur Somal, Advocate
for the petitioner.
Mr. Vipul Sherwal, AAG, Haryana.
Mr. Rakesh Nagpal, Advocate
for respondent No.2.
*****
SUMEET GOEL, J.
1. The present petition has been filed impugning the judgment dated
08.08.2024 passed by the learned Additional Sessions Judge, Kaithal & the
judgment dated 03.10.2017 as also the order dated 04.10.2017 passed by learned
Sub Judicial Magistrate, Guhla, District Kaithal, Haryana whereby the petitioner
has been convicted and sentenced for offence under Section 138 of Negotiable
Instruments Act, 1881.
2. Learned counsel for the petitioner has submitted that, during the
pendency of the proceedings in the present revision petition, the parties were
referred to Mediation and Conciliation Centre of this Court wherein they have
entered into a settlement which has been reduced into writing vide settlement deed
dated 26.09.2024, relevant whereof reads as under:-
"That during the mediation, today first party has paid Rs.20,000/- to
the second party and it is agreed between both the parties that first
party shall pay an amount of Rs. 2,20,000/-(Rupees two lakhs and
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twenty thousand) to the second party within the period of two months
i.e. till 30.11.2024 and the second party has no objection if the present
Revision Petition is allowed in view of the present compromise. In
default of payment Rs.2,20,000/-(Rupees two lakh twenty thousand),
the second party is free to file an application for revival of the
criminal revision."
3. Learned counsel appearing for the respondent-complainant has
ratified the factum of compromise/settlement deed dated 26.09.2024 entered into
between the parties before the Mediation and Conciliation Centre of this Court.
Accordingly, he has iterated that respondent-complainant has no objection in case
the offence permitted to be compounded and the petitioner is ordered to be
acquitted.
4. Learned State counsel has submitted that he has no objection in case
the offence is permitted to be compounded by this Court and the petitioner is
ordered to be acquitted.
5. I have heard learned counsel for the rival parties and have perused
the available record.
6. It would be apposite to refer herein to a judgment passed by three
Judge Bench of the Hon'ble Supreme Court titled as Damodar S. Prabhu vs.
Sayed Babalal H., AIR 2010(SC) 1907, relevant whereof reads thus:
"15. 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:-
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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
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.
Let it also be clarified that any costs imposed in accordance with
these guidelines should be deposited with the Legal Services
Authority operating at the level of the Court before which
compounding takes place. For instance, in case of compounding
during the pendency of proceedings before a Magistrate's Court or a
Court of Sessions, such costs should be deposited with the District
Legal Services Authority. Likewise, costs imposed in connection with
composition before the High Court should be deposited with the
State Legal Services Authority and those imposed in connection with
composition before the Supreme Court should be deposited with the
National Legal Services Authority.
xxx xxx xxx xxx
xxx xxx xxx xxx
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17. We are also conscious of the view that the judicial
endorsement of the above quoted guidelines 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. We have already explained that the scheme
contemplated under Section 320 of the CrPC cannot be followed in
the strict sense. In view of the legislative vacuum, we see no hurdle
to the endorsement of some suggestions which have been designed to
discourage litigants from unduly delaying the composition of the
offence in cases involving Section 138 of the Act. The graded scheme
for imposing costs is a means to encourage compounding at an early
stage of litigation. In the status quo, valuable time of the Court is
spent on the trial of these cases and the parties are not liable to pay
any Court fee since the proceedings are governed by the Code of
Criminal Procedure, even though the impact of the offence is largely
confined to the private parties. Even though the imposition of costs
by the competent court is a matter of discretion, the scale of costs
has been suggested in the interest of uniformity. The competent
Court can of course reduce the costs with regard to the specific facts
and circumstances of a case, while recording reasons in writing for
such variance. Bona fide litigants should of course contest the
proceedings to their logical end. Even in the past, this Court has
used its power to do complete justice under Article 142 of the
Constitution to frame guidelines in relation to subject-matter where
there was a legislative vacuum."
6.1. Further the Hon'ble Supreme Court in a judgment titled as M/s
New Win Export & Anr. vs. A. Subramaniam 2024 INSC 535 : 2024(3)
Law Herald (SC) 2098, relevant whereof reads as under:
"6. At this juncture, we would also like to reiterate a few words
regarding the principles of compounding of offences in the context
of NI Act. It is to be remembered that dishonour of cheques is a
regulatory offence which was made an offence only in view of
public interest so that the reliability of these instruments can be
ensured. A large number of cases involving dishonour of cheques
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are pending before courts which is a serious concern for our judicial
system. Keeping in mind that the 'compensatory aspect' of remedy
shall have priority over the 'punitive aspect', courts should
encourage compounding of offences under the NI Act if parties are
willing to do so. (See: Damodar S. Prabhu v. Sayed Babalal
H. (2010) 5 SCC 663 (Para 18), Gimpex Private Limited v. Manoj
Goel (2022) 11 SCC 705 (Para 29), Meters And Instruments
Private Limited And Anr. v. Kanchan Mehta (2018) 1 SCC 560
(Para 18.2)"
6.2. The statutory provision of Section 359 of BNSS, 2023 and
Section 147 of Negotiable Instruments Act, 1881 when examined alongwith
Section 528 of BNSS, 2023 in the guiding light of the judgments of the
Hon'ble Supreme Court in cases of Damodar S. Prabhu case (supra) and
M/s New Win Export case (supra), lead to the unequivocal conclusion that
the offence under Section 138 of Negotiable Instruments Act, 1881 can be
compounded at all levels of the stage of litigation including when the matter
has reached the High Court after being conclusively dealt with by the
Magisterial as also the Sessions Court. In other words, such an offence can
be compromised/compounded even after the petitioner-accused has been
convicted by the Court of learned Magistrate and his appeal against the same
has been dismissed by the learned Sessions Court.
The Hon'ble Supreme Court in the judgment of Damodar S.
Prabhu case (supra) has also enunciated that, ordinarily, costs ought to be
imposed when the offence under Section 138 of Negotiable Instruments Act
of 1881 is compounded at a stage when substantial proceedings have been
undertaken by Courts so as to dissuade the unscrupulous litigant from
unduly delaying the compounding of such offences. However, discretion
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has been reserved in favour of the concerned Court to reduce/waive off such
costs, in case facts/circumstances of a given case so warrant.
6.3. Still further, the inherent jurisdiction of the High Court under
Section 528 BNSS, 2023 is primarily aimed at preventing abuse of judicial process
and securing the ends of justice. Thus, when the dispute is essentially personal in
nature and a genuine compromise has been reached, the High Court may intervene
to quash the conviction recognizing the continued proceedings would be non-
productive and unjust in the given circumstances. The inherent powers of a High
Court are powers which are incidental replete powers, which if did not so exist, the
Court would be obliged to sit still and helplessly see the process of law and Courts
being abused for the purposes of injustice. In other words; such power(s) is
intrinsic to a High Court, it is its very life-blood, its very essence, its immanent
attribute. Without such power(s), a High Court would have form but lack the
substance. These powers of a High Court hence deserve to be construed with the
widest possible amplitude. These inherent powers are in consonance with the
nature of a High Court which ought to be, and has in fact been, invested with
power(s) to maintain its authority to prevent the process of law/Courts being
obstructed or abused. It is a trite posit of jurisprudence that though laws attempt to
deal with all cases that may arise, the infinite variety of circumstances which shape
events and the imperfections of language make it impossible to lay down
provisions capable of governing every case, which in fact arises. A High Court
which exists for the furtherance of justice in an indefatigable manner, should
therefore, have unfettered power(s) to deal with situations which, though not
expressly provided for by the law, need to be dealt with, to prevent injustice or the
abuse of the process of law and Courts. The juridical basis of these plenary
power(s) is the authority; in fact the seminal duty and responsibility of a High
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Court; to uphold, to protect and to fulfill the judicial function of administering
justice, in accordance with law, in a regular, orderly and effective manner. In other
words; Section 528 of BNSS, 2023 reflects peerless powers, which a High Court
may draw upon as necessary whenever it is just and equitable to do so, in
particular to ensure the observance of the due process of law, to prevent vexation
or oppression, to do justice nay substantial justice between the parties and to
secure the ends of justice. Therefore, the High Court, in the exercise of its inherent
power under section 528 BNSS, 2023 has the discretion to quash a conviction
where the parties have reached an amicable settlement, provided such compromise
does not impinge upon the public interest or undermine justice, as well as the
substantial justice.
7. Reverting to the facts of the case in hand, it is not disputed by the
concerned rival parties that an amicable settlement has been arrived at between
them and, therefore, compounding of the offence and necessary consequential
directions have been sought from this Court. A perusal of the settlement deed
dated 26.09.2024 entered into between the parties before the Mediation and
Conciliation Centre of this Court indubitably reflects that the parties have sought
to resolve their dispute(s) and bury the hatchet. Consequently, in the considered
opinion of this Court, the factual matrix of the case requires that the offence(s)
ought to be permitted to be compounded and the petitioner deserves to be
acquitted.
8. At this juncture it is noticeable that a perusal of the order dated
20.11.2024 earlier passed in the matter in hand reflects that the petitioner has
deposited an amount of Rs. 1,20,000/- (15 % of the cheque amount) with the
Haryana State Legal Services Authority.
9. In view of the above, it is directed as under:-
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(i) The impugned judgment and order dated 03/04.10.2017 passed by the
learned Sub Divisional Judicial Magistrate, Guhla as well as judgment dated
08.08.2024 passed by learned Additional Sessions Judge, Kaithal (in appeal) are
hereby set aside and the petitioner is ordered to be acquitted of the charge under
Section 138 of the Negotiable Instruments Act, 1881.
(ii) Pending application(s), if any, shall also stand disposed of.
(SUMEET GOEL)
JUDGE
January 14, 2025
jatin
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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