1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION NO.530/2009
WITH
CRIMINAL APPLICATION NO.531/2009
WITH
CRIMINAL APPLICATION NO.532/2009
(1) Criminal Application No.530/2009
Shri Gajanan Narayan Joshi,
Aged about 53 years,
Occupation - Business,
R/o. Joshi Medical Stores, Akola
Tahsil and District - Akola. .. Petitioner
.. Versus ..
1. Haridas Bhikulal Jobanputra,
Aged - Adult, Occupation - Business,
R/o. Amrutwadi, Akola.
2. State of Maharashtra,
through PSO, Akot File,
Akola. .. Respondents
..........
::: Downloaded on - 09/06/2013 14:48:14 :::
2
(2) Criminal Application No.531/2009
Shri Gajanan Narayan Joshi,
Aged about 53 years,
Occupation - Business,
R/o. Joshi Medical Stores, Akola
Tahsil and District - Akola. .. Petitioner
.. Versus ..
1. Manish Kumar Rasiklal Mehata,
Aged - Adult, Occupation - Business,
R/o. Paras Novelty & Gift Center,
Tajnapeth, Akola,
Tahsil and District - Akola.
2. State of Maharashtra,
through DGP Akola. .. Respondents
..........
(3) Criminal Application No.532/2009
Shri Gajanan Narayan Joshi,
Aged about 53 years,
Occupation - Business,
R/o. Joshi Medical Stores, Akola
Tahsil and District - Akola. .. Petitioner
.. Versus ..
1. Piyush R. Shaha,
Aged : Adult, Occupation - Business,
R/o. Patel Medical Stores,
Near Ravi Scooter,
Collector Office Road,
Akola.
::: Downloaded on - 09/06/2013 14:48:14 :::
3
2. State of Maharashtra,
through DGP Akola. .. Respondents
..........
Mr. A.H. Lohiya, Advocate h/f Mr. S.P. Deshpande, Advocate for petitioner,
Mr. S.S. Joshi, Advocate for respondent no.1,
None for respondent no.1 in CA No.531/2009,
Mr. C.N. Adgokar, APP for respondent no.2.
..........
CORAM : P.D. KODE, J.
ig DATED : JULY 18, 2009.
ORAL JUDGMENT :
1. Heard.
2. Rule. Returnable forthwith. Heard finally by consent of parties.
3. By these applications preferred under Section 482 of the Code of
Criminal Procedure, petitioner/accused facing prosecution for commission
of offence under Section 138 of Negotiable Instruments Act in Summary
Case No.4475/2006, 4514/2006 and 3927/2006 pending in Court of
learned Chief Judicial Magistrate, Akola instituted upon the complaint filed
by respective respondent no.1 in each of these respective petition, had
thrown a challenge to order dated 16.10.2008 passed by learned Additional
::: Downloaded on – 09/06/2013 14:48:14 :::
4
Sessions Judge, Akola rejecting each of applications in revision preferred by
said petitioner against common order dated 24.7.2008 passed by trial Court
for the said summary criminal cases fixing each of said case for
consideration on merits and for judgment. Needless to add that the
petitioners have prayed for quashing and setting aside order dated
16.10.2008 passed by the learned Additional Sessions Judge and have
further prayed for directing trial Court to proceed with the trial in
accordance with the procedure prescribed under Code of Criminal
Procedure.
4. The facts bereft of unnecessary details and restricted to limited
controversy involved as disclosed from applications/the orders impugned
are as under:
During the pendency of said cases at a particular stage after
recording the plea of the applicant i.e. :-
(i) in SCC No. 4457 of 2006 after respondent No.1/complainant has
led evidence on affidavit 19.7.2006 and petitioner had failed to cross-
examine him after seeking number of adjournments and trial Court had
passed order of no cross-examination on 23.2.2008 and was adjourned for
recording statement of petitioner on 22.4.2008;
::: Downloaded on – 09/06/2013 14:48:14 :::
5
(ii) in SCC No. 4514/2006 after respondent/complainant has led
evidence on affidavit on 23.2.2007 and petitioner had failed to cross-
examine him after seeking number of adjournments and trial Court had
passed order of no cross-examination on 22.2.2008 and was adjourned for
recording statement of petitioner; and
(iii) in SCC No. 3927/2006 after respondent/complainant has led his
evidence on affidavit and the petitioner had cross-examined him and
petitioner was examined by trial Court under Section 313 of Code of
Criminal Procedure and petitioner/accused in spite of taking adjournment
had failed to lead evidence in his defence and the case was closed on
29.3.2008 and the same was adjourned from time to time for final
argument;
petitioner/accused has respectively filed a pursis respectively at Exh.53, 48
and 44 inter alia stating all matters being amicably settled/compounded in
between himself and complainant and petitioner/accused has agreed for
paying the cheque amount to complainant and he would be paying the
same before next date fixed in the matter.
5. Learned counsel for respondent no.1 has urged that after filing
of said pursis, trial court observing that same was not bearing the signature
of learned Advocate for petitioner/accused had ordered complainant to look
::: Downloaded on – 09/06/2013 14:48:14 :::
6
in the matter. It is also urged that learned counsel for complainant had
noted matters stated in said pursis. It is further urged that thereafter the
petitioner/accused having not paid the amount as stated in said pursis and
pursis were filed on behalf of respondent no.1/complainant amongst other
stating that in view of petitioner/accused being ready to pay the cheque
amount in respective case and having filed pursis for granting him time;
petitioner/accused has no right to conduct/contest matter on merits and
hence all the said matters should be posted for further proceeding or for
making the justice and accordingly the common order dated 24.7.2008 was
passed by the trial Court upon complaint Exh.1 in each of the said cases.
6. Now reverting to common order impugned in the revision
application the same reveals that after considering all the said facts and
particularly after taking into consideration the pursis given by the accused,
the trial court had posted the matter for considering the merits and for
judgment.
7. It is the grievance of the learned counsel for the petitioner that
the order passed by trial court denotes said cases being posted for
judgment. It is his contention that the offences being not compounded,
the trial Court was bound to proceed with said cases in accordance with
::: Downloaded on – 09/06/2013 14:48:14 :::
7
the law i.e. reviving the proceeding from the stage at which the same were
stopped due presentation of a pursis by the accused/petitioner regarding
the settlement which unfortunately had not taken place. Hence accordingly
trial Court was bound to fix SCC Nos. 4457/2006 and 4514/2006 for
recording the statement of petitioner/accused while SCC No. 3927/2006 for
the arguments. It is his submission that trial Court was bound to proceed
with said cases thereafter as per the procedure prescribed for such
summary cases. The order passed by the trial Court fixing all the cases for
the conclusions on merits and a judgment is wholly illegal, unwarranted
and contrary to the procedure prescribed under the law. Similarly the order
passed by the Additional Sessions Judge rejecting applications in revision
preferred against the said order is also illegal as same impliedly approves
the procedure by law being not followed by trial Court. It is thus crux of
submission that both said orders are liable to be quashed and set aside.
8. Learned counsel for respondent no.1 has countered
said submissions by urging that no unwarranted inferences of the matter
being fixed for arguments and judgment and/or only for a judgment as
canvassed by learned counsel for the petitioner emerges from the order
passed by the trial Court. He has further urged that respondent no.1,
at no point of time, had requested trial Court for fixing the matter for
::: Downloaded on – 09/06/2013 14:48:14 :::
8
judgment and had merely requested for posting cases for further
proceeding, as admittedly there was no settlement/compounding of matter
and the cases were being delayed on such count of arriving of settlement.
It is his submission of same being apparent from the fact of respondent no.
1 being required to file the pursis. It is thus his submission that since the
conclusion as canvassed on behalf of petitioner is not emerging from the
order passed by the trial Court, neither any fault can be found with the
order passed by the trial Court nor with order confirming the same passed
by Court of appeal which exercising powers in revision. Thus the challenge
thrown to the said order being devoid of merits , applications deserve to be
dismissed.
9. Now before embarking upon considering rival submissions it is
necessary to say that respondent no.1 having not filed any reply to present
petition nor placed on record pursis filed by respondent no.1 for supporting
submissions canvassed about the same or about order passed by the trial
Court upon the pursis presented on behalf of petitioner; by filing any
document for supporting the same; all the same will deserve to be ignored
due to material for appreciating same being not placed before the Court.
Needless to add such a practice of making the submissions without
producing the material for supporting the same deserves to be deprecated.
::: Downloaded on – 09/06/2013 14:48:14 :::
9
10. Now considering the controversy involved in the matter i.e.
compounding of offences and the appellate revisional Court in the said
context having rightly observed that in event of compromise having not
occurred, the trial Court has no reason to pass the order dated 24.7.2008
still while rejecting applications in revision and directing the trial Court to
proceed in the matter as per the provisions of law having not clarified
certain aspects connected with such a direction given and having regard to
delay caused in the matter in view of the confusion arisen due to said order
passed and impugned in present applications had necessitated to make
some dilation about the relevant aspect.
11. The subject relating to compounding of an offence has been
found dealt in Chapter XXIV of the Code of Criminal Procedure and
particularly in Section 320 of the same while the procedure pertaining to
summary trial has been found prescribed by Section 260 to 265 of the Code
of Criminal Procedure.
12. The cursory glance at Section 320 (1) and (2) makes it
abundantly clear that the offences mentioned in table given in said sub-
sections being made compoundable by the persons mentioned in third
::: Downloaded on – 09/06/2013 14:48:14 :::
10
column of said table. Now glance to said third column clearly reveals that
permission of compounding from Court is necessary for the offences
mentioned in a table given for sub-section (2) while no such a permission is
necessary for offences mentioned in a table given in sub-section (1).
The plain reading of the said provision in terms reveal that thus power to
compound has been conferred only upon the person mentioned in the said
third column who are generally either complainant/aggrieved and/or
affected person. The power for compounding the offences mentioned in
the said table is also extended for compounding of abetment of such
offences by virtue of sub-section (3). Such a power for such offences has
been found further extended for person under aged 18 years or for an
idiots/ lunatics upon a person competent to contract on their behalf while
the same has been found extended upon the legal representative of
deceased person for a deceased who would have been competent to
compound by virtue of provisions of sub-sections (1) and (2). The limits
upon the powers to accord the permission as required under sub-section (2)
are found extended and/or restricted by virtue of provisions of sub-section
(5) and (6). The fetters on compounding of even such offences are found
imposed on count of previous conviction by virtue of sub-section (7). The
provisions of sub-section (9) makes it abundantly clearly that no offence
other than mentioned in Section 320 i.e. other than mentioned in the
::: Downloaded on – 09/06/2013 14:48:14 :::
11
tables given under sub-section (1) and (2) and/or permitted to be extended
by virtue of provisions of sub-sections (3)and (4), can be compounded.
13. Thus carefully considering scheme for compounding provided
under Code of Criminal Procedure by provisions of Section 320 makes it
clear that power to compound even the offences mentioned in the said
Section 320 is not at all conferred upon the accused in any manner or in
other words the information about offence being compounded even for the
said offences could be given only by the persons mentioned in third column
of the said tables given under sub-section (1) and (2) of Section 320.
Needless to add that the same would enable the concerned Court to pass
appropriate order as required under Section 320 (8) of the Code of
Criminal Procedure. Having regard to the same any information about
compounding of offences given by any other person other than the person
permitted to compound would be inconsequential.
14. Now considering the aforesaid aspect in light of the provisions
of Section 147 of the Negotiable Instruments Act under which the offences
punishable under the said Act is made compoundable, it can be safely said
that power to compound such offences would be deemed to have been
extended only upon the complainant/affected person etc. but not upon the
::: Downloaded on – 09/06/2013 14:48:14 :::
12
accused. Such a conclusion is inevitable as non-abstante part of Section
147 of Negotiable Instruments Act is apparently related with the aspect of
the offences under other Act other than IPC being not made compoundable
by virtue of provisions of Section 320. The same is obvious having regard
to the purpose for which power of compounding offences has been found
confined with the person mentioned in third column of tables mentioned in
sub-sections (1) and (2) of Section 320. The same appears accordingly
after taking into consideration purpose for which such a provisions are
made and the practical aspect connected with same.
15. It is indeed true that compounding of an offence permitted to be
compounded in most of the cases would involve arrival of bilateral
agreement as compounding itself involve settlement of differences between
affected person and offending an accused , still the whole object behind
composition or permitting to compound being redressal of grievance of
affected person, the legislature in its wisdom had conferred power to report
of compounding of an offence upon the affected person/ or the persons
standing in the shoes for them.
16. In the matter of compounding of an offences as permitted by
Section 320 of the Code of Criminal Procedure it will not be out of place to
::: Downloaded on – 09/06/2013 14:48:14 :::
13
point out that though the same appears to be akin with compromising of
the civil matters as made permissible by provisions of Order 23 Rule 3 of
the Code of Civil Procedure, still there exists a great deal of a difference in
between them. Under the latter provision, the Court is required to examine
the legality of the settlement or compromise arrived; while same is wholly
unnecessary under the former provision. In event of compounding of an
offence being reported to a criminal court by a person authorized to inform
the same, it is wholly unnecessary for the Court to examine the terms of the
settlement and/or to determine whether the same are complied or
otherwise. The Criminal Court is only required to take into consideration
the fact of offence being compounded being reported to it by a person
authorised to do so and the said person having compounded the offence
with a will or without threat, coercion, duress or undue influence.
Needless to add that in event of such things being satisfactorily established
would follow the order under Section 320 (8) of Cr.P.C.
17. Now even taking a practical view of accused having reported of
arrival of compounding of offences and occurrence of such a thing could
be in most of the cases due to arriving of bilateral agreement would
require the Court to make the necessary inquiry by questioning the
complainant , still the same should not be permitted to be extended
::: Downloaded on – 09/06/2013 14:48:14 :::
14
unduly for a longer period as found to have been extended in the instant
case and much a less on the count of the accused satisfying the terms of
settlement of making the payment within one month. Needless to add that
in event of compounding of an offences being not reported by proper
person and/or after completing expeditiously inquiry about the relevant
aspect and in event of Court coming to conclusion of compounding of an
offences having not taken place , Court would be bound to fix the matter for
further proceeding for completion of summary trial alike other criminal
trials required to be completed as expeditiously as possible.
18. Now after considering in proper perspective the matters stated
in the pursis given by the petitioner and even after taking most charitable
view of the same showing his admission/willingness to pay cheque amount
in view of the settlement being arrived, still it is difficult to accept the
submission of learned counsel of the same amounting to admission of guilt
the petitioner/accused has no right to contest the said cases on merits
after filing of such a pursis. The same is obvious as construing the same as
an admission of guilt, the same should have disclosed a clear cut admission
of commission of offence under Section 138 of the Negotiable Instruments
Act or admission of all the facts constituting commission of such offences
on his part.
::: Downloaded on – 09/06/2013 14:48:14 :::
15
19. Now the matters stated in the said pursis being not to the effect
of petitioner/accused having committed offence under section 138 of the
Negotiable Instruments Act or the matters admitted by him being
insufficient to satisfy all the necessary ingredients constituting commission
of such offences, it is difficult to accept the justification of submission to
such effect canvassed by learned advocate for respondent no.1. At the cost
of repetition it is prompted to record that agreement to pay cheque amount
would never be construed as an admission of guilt of commission of
offence under Section 138 of the Negotiable Instruments Act.
20. In the present case since accused was facing the prosecution for
commission of an offence under Section 138 of Negotiable Instruments Act
and in view of the provisions of Section 143 of the said Act , the Court
requiring the said cases to be conducted summarily and thus the
provisions prescribed under Section 262 to 265 of the Code of Criminal
Procedure being required to be followed for such a cases and the narration
mentioned hereinabove having revealed the stage at which the pursis was
presented on behalf of the accused which has resulted in stagnation of the
said proceeding, it will be necessary to say that in view of compounding
having not occurred, the trial Court was bound to consider the aspect of
::: Downloaded on – 09/06/2013 14:48:14 :::
16
hearing the accused as warranted under Section 254 sub clause (1) of
Cr.P.C. for SCC No. 4457 of 2006 and 4517 of 2006 and thereafter to
proceed in accordance with the procedure prescribed for such a trial.
While for SCC No. 3927 of 2006 Court was bound to consider the matter
in accordance with the law from a stage at which the same has stagnated
due to passing of the pursis.
21. In the aforesaid state of affairs and the order passed by the trial
Court revealing all the three cases being posted for “consideration on
merits and for judgment” cannot be said to be an order passed by the trial
Court in accordance with the procedure prescribed at the law. Needless to
add that different stage at which the said cases were stagnated itself reveals
that the same could not have been posted or at least two of them could not
have been posted in such a manner by passing a common order. The
Criminal Court not being expected to be a silent spectator at a criminal
trial and being expected to navigate smooth voyage of criminal trial for
quest of a truth was bound to give a clear directive in accordance with the
law regarding the purpose for which the trial was posted in order to avoid
arousing of confusion in the minds of the parties at a trial. For the said
purpose trial Court was bound to fix the matter as indicated in the
preceding paragraphs of this judgment.
::: Downloaded on – 09/06/2013 14:48:14 :::
17
22. As observed earlier though Court of Session by rightly observing
that passing of such an order by a trial Court was wholly unnecessary has
dismissed the applications in revision preferred, still the Sessions Court
having missed the aspect of the order passed by the trial Court failing to fix
the matter for definite purpose to avoid arousing of confusion in the minds
of the parties at a trial and only chosen to give the direction for proceeding
in accordance with the law also cannot be upheld. Needless to add ,as a
superior Court, the Court of Session ought to have made such a correction
in order passed by the trial Court for achieving such purpose.
23. In aforesaid state of an affairs the orders passed by both the
Courts cannot be sustained. Such a conclusion is inevitable as there
appears merits in the submissions of learned counsel for the petitioner of
the trial Court instead of proceeding with the matter in accordance with
the law had posted the same for consideration on merits and for judgment
in flagrant disregard with the provisions prescribed for such a trial. The
rival submissions canvassed by the counsel for respondent no.1 of the
matter being not fixed for a judgment and or the respondent no.1 had
merely requested for posting the cases for further proceedings due to there
being not settlement will not survive in view of latter part of the order
passed by the trial Court itself revealing matter being fixed for a judgment
::: Downloaded on – 09/06/2013 14:48:14 :::
18
at least in two cases before completion of the gamut of summary trial as
prescribed by the procedural law and for the rest of the submissions no
material being placed before this Court.
24. For all the reasons stated hereinabove for serving the ends of
justice, the order passed by the Court of Sessions in all the said revision
applications and so also by trial Court is hereby quashed and set aside to
put at the rest unnecessary confusion arisen within the parties due to
same. The trial court is directed to proceed with the matter in accordance
with law from the stage at which the same was stagnated i.e. as clarified in
paragraph no. 20 hereinabove. Since it is apparent that passing of such
order has resulted in forestalling of trial for considerable amount, the trial
court is directed to dispose of the said cases as expeditiously as possible.
25. Rule is made absolute in above terms.
(P.D. KODE, J.)
………
::: Downloaded on – 09/06/2013 14:48:14 :::
