Kalulal Bhat vs Durga Salvi
2021 Latest Caselaw 19407 Raj

                                          (1 of 5)                   [CRLR-975/2021]


        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR

S.B. Criminal Revision Petition No. 975/2021

Kalulal Bhat S/o Deepchandra Bhat, Aged About 44 Years, Kanpur Madari, Tehsil Girwa, Dist. Udaipur (Raj.). (Presently Lodged In Central Jail, Udaipur).

----Petitioner Versus

1. Durga Salvi W/o Chattarlal Salvi, North Sundarwas, Rana Pratapnagar, Udaipur (Raj.).

2.        State Of Rajasthan, Through Pp
                                                                  ----Respondents


For Petitioner(s)          :     Mr. G.S. Bhati
For Respondent(s)          :     Mr. Dashrath Singh, complainant
                                 Mr. Gaurav Singh, P.P.



        HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

                                      Order

20/12/2021

Heard learned counsel for the appellant on application under

Section 5 of the Limitation Act.

As per office report, the instant appeal is barred by 653

days.

Having regard to the grounds set out in the application, I feel

persuaded to accept the application.

Accordingly, same is allowed. Delay in filing the appeal is

condoned.

With the consent of learned counsel for the parties, matter is

heard and decided finally.

(2 of 5) [CRLR-975/2021]

Accused-petitioner has preferred this revision petition under

Section 397/401 Cr.P.C. to challenge judgment dated 13.06.2019,

passed by Additional Sessions Judge No.5, Udaipur (for short,

'learned appellate Court'), whereby learned appellate Court has

confirmed judgment dated 16.02.2015, rendered by Special

Judicial Magistrate (N.I. Act Cases) No.2, Udaipur (for short,

'learned trial Court'). The learned trial Court, by its verdict dated

16.02.2015, indicted accused-petitioner for offence under Section

138 of the Negotiable Instruments Act, 1881 (for short, 'Act') and

handed down sentence of one year's simple imprisonment.

Besides imprisonment, the learned trial Court has also ordered

that accused-petitioner should pay compensation to the

complainant to the tune to Rs.2,50,000/-. Being aggrieved by the

same, petitioner approached learned appellate Court but that

effort did not fructify to his advantage as the learned appellate

Court dismissed the appeal. This sort of situation has necessitated

filing of this revision petition.

Learned counsel for the petitioner submits that now rival

parties have sorted out their dispute and compromise has been

arrived at. The copy of the compromise dated 03.12.2021 has

already been taken on record. With this positive assertion, learned

counsel has urged that both the impugned judgments be annulled

and sentence handed down by learned trial Court and confirmed

by learned appellate Court be set aside. Learned counsel has

relied on a decision of Supreme Court in Damodar S. Prabhu Vs.

Sayed Babalal H. [(2010) 5 SCC 663].

(3 of 5) [CRLR-975/2021]

Learned counsel for the complainant stated that although the

accused-petitioner is behind the bars but the complainant-

respondent No.1 has received full and final amount which is due

against accused-petitioner and now no amount is due between the

parties. It is further submitted that looking to the nature of

offence and in the wake of settlement of dispute between rival

parties, the conviction recorded by learned trial Court and upheld

by the learned appellate Court merits annulment.

I have heard learned counsel for the accused-petitioner and

learned counsel for the complainant and perused the materials

available on record.

Chapter XVII of the Act deals with penalties in case of

dishonor of cheques for insufficiency of funds in the accounts. A

complete procedure in this behalf is provided under Section 138 to

147 of the Act. Section 142 deals with cognizance of offence and

Section 143 empowers a Court to try cases under Section 138 of

the Act summarily. As per Section 147 of the Act, every offence

punishable under the Act is compoundable notwithstanding

anything contained in the Cr.P.C. While it is true that the offence

is compoundable but a pivotal question, which has emerged for

consideration, is whether revisional powers can be exercised by

this Court to compound the offence under Section 138 of the Act

after conviction of the petitioner by appellate Court.

(4 of 5) [CRLR-975/2021]

In Damodar S. Prabhu (supra), Supreme Court has

examined the provisions of Section 138 and 147 of the Act

threadbare and observed that compensatory aspect of the remedy

should be given priority over the punitive aspect. The Court

observed that Section 147 of the Act, being an enabling provision,

it can serve as exception to the general rule incorporated in sub-

sec.(9) of Section 320 Cr.P.C. The Court, while laying emphasis on

non-obstante clause under the aforesaid Section, further held that

Section 147 inserted by way of amendment to special law will

override the effect of Section 320(9) Cr.P.C. The Court approved

compounding of offences at a later stage of litigation in cheque

bouncing cases. Finally, the Court framed certain guidelines for a

graded scheme of imposing costs on parties, who unduly delay

compounding of the offences and proposed certain percentage of

cheque amount to be deposited with Legal Services Authority.

Applying the ratio decidendi of Damodar S.Prabhu (supra)

and the guidelines framed therein, on the strength of compromise

arrived at between petitioner and the complainant, I feel

persuaded to exercise revisional jurisdiction for doing real and

substantial justice in the matter for the administration of which

alone the Courts exist.

Accordingly, I prefer to give priority to the compensatory

aspect of remedy over the punitive aspect in the matter in the

wake of settlement of dispute and compromise being arrived at

between the rival parties.

(5 of 5) [CRLR-975/2021]

In view of foregoing discussion, the instant revision petition

is allowed, impugned judgment dated 13.06.2019 passed by

learned appellate Court as well as judgment dated 16.02.2015

passed by the learned trial Court are set at naught as a

consequence of compromise having been arrived at between the

rival parties and while acknowledging their compromise offence

under Sec. 138 of the Act is hereby compounded by resorting to

Section 147 of the Act. Compounding of offence under Section

138 of the Act, obviously, entails acquittal of the petitioner.

However, taking into account the fact that petitioner has

caused undue delay in making endeavour for compounding of

offence, in terms of guidelines framed by the Supreme Court in

Damodar S. Prabhu (supra), accused-petitioner is ordered to be

released, if not required in any other case, subject to the condition

that he deposits 15% of the cheque amount, i.e., Rs.27,000/-

(1,80,000/- X 15%) with the District Legal Services Authority,

Udaipur within a period of one month from today. In case, the cost

is not deposited by the petitioner before the District Legal Services

Authority within the stipulated period, the revision petition may be

listed before this Court for passing appropriate orders.

After detailed discussion, the revision petition is allowed in

the light of the judgment of Damodar S. Prabhu (supra). .

(DEVENDRA KACHHAWAHA),J 155-Bharti/-

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