Criminal Revision No. 2560 of 2009 -1-
In the High Court of Punjab & Haryana at Chandigarh
Criminal Revision No. 2560 of 2009 (O&M)
Date of decision : 3.11.2009
Gayana ..... Petitioner
vs
The Hisar Bhartiya Dak Tar and Government Employees
Co-operative Urban (SE) T&C) Society Limited and another ..... Respondents
Coram: Hon'ble Mr. Justice Rajesh Bindal
Present:- Mr. Vivek Singla, Advocate, for the petitioner.
Mr. BS Walia, Advocate, for respondent no. 1.
Mrs. Ritu Punj, Deputy Advocate General, Haryana,
for respondent no. 2.
Rajesh Bindal, J.
The petitioner through the present petition has challenged the order
of his conviction passed by the Additional Chief Judicial Magistrate, Hisar, under
Section 138 of the Negotiable Instruments Act, 1881, which was upheld by the
Additional Sessions Judge, Hisar. He has been sentenced to undergo rigorous
imprisonment for a period of six months and to pay compensation of Rs. 50,000/-.
The complaint in the present case was filed by respondent no. 1 on
account of dishonour of cheque bearing no. 008151 dated 19.4.2004 for Rs.
43,145/-, issued by the petitioner in favour of the respondent-Society drawn on
Union Bank of India, CRM Jat College Branch, Hisar.
As the accused-petitioner was ready and willing to settle the account
with the respondent-society, he was ordered to be released on bail by this court on
26.10.2009. The relevant extract of the order is as under:-
“xxx xxx xxx
Learned counsel for the petitioner on
instructions submitted that amount of Rs. 70,000/-
as demanded by the Society as full and final to
settle the account of the petitioner is agreeable. He
has paid a sum of Rs. 50,000/- in cash to Mr. BS
Walia, Advocate, counsel for respondent no. 1-
Society in court. He submitted that the balance Rs.
20,000/- will be paid by him before the next date
of hearing.
xxx xxx xxx xxx”
Criminal Revision No. 2560 of 2009 -2-
In terms of the aforesaid order, learned counsel for the petitioner has
paid the balance amount of Rs. 20,000/- today in court to Ram Singh, President of
the society, who is present in person in court. It was further stated by him that he
has no objection in case the conviction of the petitioner is set aside.
Learned counsel for the petitioner submitted that as 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, 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
respondent no. 1, 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.
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
Criminal Revision No. 2560 of 2009 -3-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 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.
The petition is disposed of.
3.11.2009 ( Rajesh Bindal) vs. Judge