Criminal Revision No. 2794 of 2009 -1-
In the High Court of Punjab & Haryana at Chandigarh
Criminal Revision No. 2794 of 2009 (O&M)
Date of decision : 29.10.2009
Ajay Kumar ..... Petitioner
vs
M/s Herry Finance and Investment Co. (Regd.) ..... Respondent
Coram: Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. Ritesh Pandey, Advocate, for the petitioner.
Mr. A. S. Bhatti, Advocate, for the respondent.
Rajesh Bindal, J.
The petitioner through the present petition has challenged the
order of his conviction passed by the Chief Judicial Magistrate, Gurdaspur,
under Section 138 of the Negotiable Instruments Act, 1881, which was
upheld by the Additional Sessions Judge, Gurdaspur. He has been sentenced
to undergo rigorous imprisonment for a period of six months and to pay fine
of Rs. 500/-. In default of payment of fine, he is to undergo further
imprisonment for one month.
The complaint in the present case was filed by the respondent
on account of dishonour of cheque bearing no. 397842 dated 17.4.2006 for
Rs. 60,000/-, issued by the petitioner in favour of the respondent company
drawn on Oriental Bank of Commerce, Dinanagar.
Learned counsel for the petitioner submitted that after
conviction of the petitioner in the present case, the dispute between the
parties has been settled by way of compromise and in terms thereof, the
entire amount due against the petitioner of the cheque, in question, in
complaint has already been paid, and accordingly, the offence may be
compounded and the conviction of the petitioner be set aside.
This fact is not disputed by the learned counsel appearing for
the respondent, rather he very fairly submitted that he has no objection in
case the conviction of the petitioner is set aside. The respondent, who was
present in court in person, had admitted the factual position. The respondent
has also made a statement to this effect in the court.
Criminal Revision No. 2794 of 2009 -2-
Once the parties have settled their dispute, in terms of the
judgment of Hon’ble the Supreme Court in Vinay Devanna Nayak v. Ryot
Seva Sahakari Bank Ltd., 2007 (5) Law Herald (SC) 3843, the offence
committed by the petitioner for which he has been convicted, is
compoundable. Relevant paras therefrom are extracted below:-
“17. As observed by this Court in Electronic Trade &
Technology Development Corporation Ltd. v.
Indian Technologists & Engineers, (1996) 2 SCC
739, the object of bringing Section 138 in the statute
book is to inculcate faith in the efficacy of banking
operations and credibility in transacting business on
negotiable instruments. The provision is intended to
prevent dishonesty on the part of the drawer of
negotiable instruments in issuing cheques without
sufficient funds or with a view to inducing the payee
or holder in due course to act upon it. It thus seeks to
promote the efficacy of bank operations and ensures
credibility in transacting business through cheques. In
such matters, therefore, normally componding of
offences should not be denied. Presumably, Parliament
also realised this aspect and inserted Section 147 by
the Negotiable Instruments (Amendment and
Miscellaneous Provisions) Act, 2002. (Act 55 of
2002). The said section reads thus:
S.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.
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
Criminal Revision No. 2794 of 2009 -3-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.”
Hon’ble the Supreme Court in 2008 (2) Criminal Court Cases
233 (R.Rajeshwari v/s H.N.Jagdish) opined that table appended to Section
320 Cr.P.C. is not attracted for offences under the Act as Section 147
thereof gives it overriding effect as the same provides for a non obstente
clause, Stricto Senso, however, the table appended to Section 320 Cr.P.C. is
not attracted as the provisions mentioned therein refer only to provisions of
IPC and none other. It is further held that even a compromise arrived at by
the advocate of the party, authorised to do so, is binding on the party
concerned.
In view of settlement of dispute between the parties, the offence
and conviction is compoundable, accordingly, it is directed that the order of
conviction and sentence awarded by the Courts below in the case of the
petitioner is set aside and he is acquitted from all the charges levelled
against him. He is directed to be released from jail forthwith.
The petition is disposed of.
29.10.2009 ( Rajesh Bindal) vs. Judge