Rajasthan High Court - Jodhpur

Bheru Singh vs Mularam (2025:Rj-Jd:40139) on 9 September, 2025

[2025:RJ-JD:40139]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
             S.B. Criminal Revision Petition No. 679/2024

Bheru Singh S/o Ray Singh, Aged About 50 Years, R/o Chouhano
Ka Guda, Badgaanv, P.s. Kelwada, District Rajsamand (Raj.)
(Petitioner Is In District Jail Rajsamand)
                                                                    ----Petitioner
                                    Versus
1.       Mularam S/o Shri Kheti, R/o Majera, P.s. Kelwada, District
         Rajsamand (Raj.)
2.       State Of Rajasthan, Through Pp
                                                                 ----Respondents


For Petitioner(s)         :     Mr. Love Jain
For Respondent(s)         :     Mr. Narendra Gehlot, PP
                                Mr. Naresh Khatri



              HON'BLE MR. JUSTICE SANDEEP SHAH

Order

09/09/2025

1. The present revision petition has been filed challenging the

judgment dated 09.03.2022, passed by the learned Judicial

Magistrate, Kumbhalgarh, in Regular Criminal Case No.163/2017

(CIS No.164/2017) (Mularam v. Bheru Singh) whereby the

appellant was convicted under Section 138 of the Negotiable

Instruments Act, 1881 and imposed punishment of simple

imprisonment of six months and also fine of Rs.80,000/-.

2. The appellant has also challenged the order passed by the

learned Special Judge, SC/ST (Prevention of Atrocities), Act Cases,

Rajsamand, in Criminal Appeal No.80/2023 (CIS No.29/2022)

(Bheru Singh v. Mularam) dated 16.04.2024, whereby the appeal

against the above-mentioned order was dismissed.

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3. Learned counsel for petitioner- Mr. Love Jain and learned

counsel for respondent No.1 -Mr. Naresh Khatri have submitted

that both the parties have settled the matter and therefore, in

view of the provisions of Section 139 of the Negotiable

Instruments Act, 1881, the present revision petition may be

allowed. They submit that a compromise deed was executed on

13.08.2025, duly signed by both the parties in the presence of

witnesses, fortifying the fact that the respondent has received the

entire amount due and has no objection if the revision petition is

allowed on the basis of the said compromise.

4. On specific query, the learned counsel Mr. Naresh Khatri

appearing for complainant Mularam S/o Shri Kheti stated that in

view of the fact that the parties have settled the issue and the

amount has been paid, he has no objection if the present revision

petition is allowed.

5. Considered the spirit of the provisions of Section 147 of the

Negotiable Instruments Act, 1881 which provides as under:-

"147. Offences to be compoundable.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable"

6. 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

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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 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.

7. In the case of M/s. Meters and Instruments Private Limited

and Anr. vs. Kanchan Mehta reported at 2018 (1) SCC 560, the

Hon'ble 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

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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 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 inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances'.

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8. The Hon'ble Apex Court in the case of Vinay Devanna

Nayak vs. Ryot Seva Sahkari Bank Limited reported at AIR

2008 SC 716 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 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."

9. Considering the statements made by both the learned

counsels and after perusal of compromise deed dated 13.08.2025,

as also taking guidance from the judgments referred to supra, the

present revision petition is allowed in view of the compromise

entered between parties.

10. However, since the compromise has been arrived at after

rejection of the appeal preferred by the petitioner, a cost of 15%

of the cheque amount deserves to be imposed upon the petitioner

in light of the decision rendered by the Hon'ble Apex Court in the

case of Damodar S. Prabhu (supra).

11. Accordingly, the conviction and sentence of imprisonment

awarded to the petitioner for offence under Section 138 NI Act