Rajasthan High Court

Omprakash Chauhan S/O Shri Jagan Lal ... vs State Of Rajasthan on 22 October, 2024

Author: Sameer Jain

Bench: Sameer Jain

[2024:RJ-JP:41627]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

        S.B. Criminal Miscellaneous (Petition) No. 6141/2024

Omprakash Chauhan S/o Shri Jagan Lal Thekedar, R/o Kheda
House, Soor Sagar, Alwar (Raj). (Presently Confined In District
Jail Alwar ).
                                                                      ----Petitioner
                                       Versus
1.       State Of Rajasthan, Through Pp Rajasthan High Court.
2.       Gulshan Lal Bhatiya S/o Shri Alam Chand Bhatiya, R/o 74
         Shanti      Kunj,         Alwar   (Since       Died)      Through    Legal
         Representative Manish Bhatiya S/o Gulshan Lal Bhatiya
         S/o Shri Alam Chand Bhatiya, R/o 74 Shanti Kunj, Alwar.
                                                                   ----Respondents


For Petitioner(s)              :     Mr. Gaurav Jain
                                     Mr. Vijay Kumar Gupta
                                     Mr. Prashant Khandelwal
                                     Mr. Arpit Gupta
For Respondent(s)              :     Mr. M. S. Shekhawat, PP
                                     Mr. Abhishek Bhardwaj, Amicus
                                     Curaie with
                                     Mr. Shatanu Sharma
                                     Mr. Deepak Kumar Sharma



                HON'BLE MR. JUSTICE SAMEER JAIN

                                     Judgment

Reserved on               ::               24/09/2024
Pronounced on             ::               22/10/2024

1.    The present petition is filed under Section 528 of BNSS, 2023

with a prayer to quash and set aside the proceedings and

conviction under Section 138 of Negotiable Instrument Act,

1881(hereinafter "the Act"), arising out of judgment dated

24.02.2011 qua dishonor of cheque, wherein the petitioner was

convicted and sentenced to one-year simple imprisonment, on the

ground of compromise entered in-between the parties.


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2.    The factual matrix of the case is that the Respondent No.1

had filed a complaint against the petitioner under Section 138 of

the Act, before the learned Trial Court alleging that the cheque

bearing no.371816 dated 09.03.2007 for a sum of Rupees

100,000/- (Rupees One Lakh only) was dishonored due to

insufficient funds, wherein the petitioner was convicted vide

judgment dated 24.01.2011 and was awarded sentence for one

year along with the fine amounting to Rupees 1,20,000/- (Rupees

One Lakh Twenty Thousand Only).

3.    Thereafter, being aggrieved by the said order of conviction

and sentence, an appeal was preferred by the petitioner before

the Appellant Court, wherein the judgment passed by the learned

Trial Court was upheld vide judgment decree dated 21.09.2011.

4.    Consequently, being further aggrieved, the petitioner left no

stone unturned and approached the Co-ordinate Bench of this

Court by filing a revision petition (S.B. Criminal Revision

Petition No. 1874/2011), unfortunately the same was also

dismissed vide judgment dated 21.08.2023, on the ground that

pursuant to the order of the trial or appellant Court the petitioner

had not surrendered and not remained in the custody at the time

of filing present petition and since the dismissal of appeal dated

21.09.2011, for a period of 12 years the petitioner was avoiding

the due process of law and was unable to appear in pursuance of

aforesaid orders, therefore the petition was dismissed for non

compliance.

5.    Additionally, the fact of compromise was duly considered by

the Coordinate Bench of this Court, and it was specifically averred

as follows: -

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      "Sufficient time has been afforded to petitioner.
      Learned counsel appearing for petitioner

submits that parties have entered into a compromise but to attest compromise, neither complainant is present, nor his authorized representatives is present before the Court. On 21.09.2011 an appeal was dismissed and since then after 12 years this petitioner is avoiding the process of law and unable to appear in pursuant of aforesaid orders.

Further request for adjournment cannot be allowed and this petition is hereby dismissed for non- compliance.

Misc. application, if any, stands disposed of. Before parting with the order, it appears that after dismissal of appeal on 21.09.2011, learned trial Court failed to ensure presence of present petitioner and to ensure that he is called served the sentence."

6. In this background, the present petition is filed by the

petitioner on the ground of compromise, as the petitioner has

been serving the sentence passed by the Trial Court and upheld by

the subsequent Courts.

7. Learned counsel appearing on behalf of the petitioner had

submitted that in terms of Section 138 and 147 of the Act and

Section 320 of Cr.P.C, even post-conviction and after dismissal of

appeal, if a compromise is recognized between the parties, the

criminal proceedings can be quashed, as proceedings under

Section 138 are primarily a civil wrong carrying penal

consequences.

8. Learned counsel appearing on behalf of the petitioner had

further submitted that proceeding under the provisions of Section

138 of the Act are quasi- criminal in nature and the primary aim of

the Act is to ensure payment rather than awarding a punishment.

9. Additionally, it was submitted that Section 147 of the Act

does not specify the appropriate stage qua which offences can be

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compounded, and offences punishable under the Act can be

compounded in accordance with Section 147. Therefore,

proceedings qua Section 138 of the Act are appropriate and

amenable to compromise, which can be recognized at any stage of

the proceeding.

10. Learned Counsel had placed reliance upon qua Section 138

and 147 of the Act and Section 320 of Cr.P.C, the dictum

encapsulated in the judgment of Hon'ble Apex Court titled as

Damodar S. Prabhu Vs. Sayed Babalal H. reported in (2010)

5 SCC 663, Gian Singh VS. State of Punjab: (2012) 10 SCC

30 and judgment of the Hon'ble Madras High Court titled as D.

Simpson Vs. S. T. Perumal reported in 2014 (1) MWN (Cr.)

DCC 161 (Mad.). Lastly, reliance was placed upon Raj Reddy

Kallem Vs. The State of Haryana and Another: (2024) 5 SCR

203.

11. Learned counsel had further placed reliance upon some other

similar judgments, especially given by Coordinate Bench of this

Court titled as Naresh Kumar vs. State and Anr., reported in

S.B. Criminal Revision Petition No. 1267/2016, wherein while

dealing with a similar situation, Court had allowed the petition

filed under Section 482 of Cr.P.C read with Section 147 of

Negotiable Instrument Act, with a prayer to review/recall the

order passed in revision petition, on the ground of compromise

entered subsequently between the parties.

12. Learned counsel appearing on behalf of the petitioner had

placed reliance upon the above-mentioned judgments, and

submitted that, considering the above said submissions and ratio

encapsulated under Section 482 of Cr.P.C., pari materia to the

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provision of Section 528 of BNSS, proceedings can be set aside

even after the conviction and dismissal of appeal to the revision.

13. Per contra, learned Amicus Curiae in the instant matter, had

submitted the question of law which falls for consideration, and

submitted various arguments and judgments qua the same.

Question is reproduced herein:-

"Whether an order passed by the Hon'ble High Court/equivalent Court in the criminal revision petition confirming the conviction can be nullified by the Hon'ble High Court in a petition filed under Section 482 of Cr.P.C. noticing subsequent compromise of the case by the contesting parties?"

14. Learned Amicus Curiae had submitted that the petitioner was

not in custody despite the order of the Trial Court and was

arrested only on 02.02.2024, subsequent to the dismissal of

revision petition by the Co-ordinate Bench of this Court on

21.08.2023.

15. Additionally, highlighted the crucial fact qua review petition

and provision under Section 362 of Cr.P.C, and submitted that the

petition filed under Section 482 Cr.P.C is not maintainable for

reviewing or recalling a judgment which was already passed by

the Co-ordinate Bench, by confirming the conviction and sentence

imposed by the learned Trial Court and exercise of power under

Section 482 of Cr.P.C is subject to restriction imposed under

Section 362 of Cr.P.C., which expressly prohibits the Court from

reviewing or recalling its own judgment. For further clarification,

the relevant provision of Section 362 Cr.P.C is reiterated as

follows: -

"Section 362 Cr.P.C- Court not to alter judgment.

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- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error ."

16. Furthermore, submitted that the Co-ordinate Bench of this

Court had already duly considered the fact qua compromise, as

well as the delayed and insouciant exhibited by the petitioner.

17. Additionally, had contested that when Coordinate Bench of

this Court has concluded a finding, modification or alteration is

precluded under Section 362 of Cr.P.C, except for clerical or

arithmetical error. Moreover, in support of this argument, learned

Amicus Curiae had placed reliance upon the ratio encapsulated in

the Hon'ble Apex Court judgment titled as Narayan Prasad Vs.

State of Bihar reported in 2019 (14) SCC 726.

18. Considering the above said, had submitted that the present

petition is essentially an application seeking a review of the order

passed by Coordinate Bench in its revision jurisdiction, behind a

smokescreen of quashing petition. Therefore, in accordance with

the provisions of Section 362 and 397(3) of Cr.P.C, the review of

said order is barred and cannot be entertained by this Court. The

appropriate forum to address the issue would be the Hon'ble Apex

Court.

19. Learned amicus curiae had also placed reliance upon the

dictum enunciated in the judgment of the Hon'ble Supreme Court

titled as Ramavatar Vs. State of Madhya Pradesh reported in

MANU/SC/0967/2021, wherein Court held that the inherent

powers under Section 482 of Cr.P.C akin to Section 528 BNSS, are

exercisable in post-conviction matter only where, an appeal is

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pending before one or another judicial forum. This is on the

premise that an order of conviction does not attain finality till the

accused has exhausted his/her remedies and the finality is sub-

judice before an Appellant Court. Moreover, the pendency of legal

proceeding may before the final court is sine qua non to involve

the superior court plenary power to do complete justice.

20. Lastly, submitted that in the present case, a Coordinate

Bench of this Court, while exercising its revisionary powers,

dismissed the revision petition on the same factual grounds,

deeming the compromise to be a lackadaisical approach. As such,

this Court cannot re-evaluate or re-appreciate the matter afresh

on the same set of facts.

21. In summation of the above-said, this Court considering the

facts and circumstances of the case, the submissions made by the

learned counsel for the parties, the judgments cited at the bar,

and the observations made by the Co-ordinate Bench, has made

the following observations: -

21.1 That the proceedings under the provision of Section 138 of

the Act, were initiated in the year 2007, and order qua the same

Trial Court rendered its on 24.01.2011, imposing both a sentence

and compensation of Rs. 20,000/-.

21.2 That the Appellate court dismissed the appeal on 21.09.2011

and the revision petition tilted as SB Criminal Revision No.

1874/2011, was dismissed on 21.08.2023 by the Co-ordinate

Bench of this Court.