Cheque Dishonour | Proceedings U/S 138 NI Act Cannot Be Compounded At Revision Stage Without Complainant’s Consent: Calcutta High Court

The Calcutta High Court has observed that offences under Section 138 of the Negotiable Instruments Act (“N.I. Act”), cannot be compounded without the complainant’s consent, in violation of Section 320 CrPC.

In dismissing two criminal revisions, a single-bench of Justice Subhendu Samanta held:

It is clear that the prayer of compromise at the stage of criminal revision before this High Court is not possible without consent of the complainant. Nothing prevented the petitioner to make the proposal before the Magistrate or the appellate court. However, the law of the land is well established to the fact that the compounding cannot be held violating the principle enumerated in Section 320 of the Cr.P.C, thus I am of a view that the offences as proved against the petitioner cannot be compounded.

It was argued that the opposite party had submitted a written complaint to the Judicial Magistrate, Howrah u/s 138 of the NI Act, accusing the petitioner of offences under the aforesaid section, and for corresponding compensation and sentencing of the petitioner.

Petitioner was found guilty of the offences as accused by both the Judicial Magistrate, as well as the Sessions Judge, Howrah under Section 138 of the NI Act and accordingly sentenced.

Convicted u/s 138, the petitioner had been made to suffer punishment by the Magistrate by keeping him confined till rising of the Court, as well as by imposing a total compensation of Rs 8 lakh payable by him.

Before the High Court, counsel for the petitioner submitted that the matter may be compounded at the present stage and that the petitioner was ready to deposit a cheque for the claimed amount, along with 15% costs to the opposite party.

Counsel relied on Apex Court decisions to argue that the High Court had the power to compound offences u/s 138 NI Act, and that the procedure for the same had been well settled in the case of Damodar S Pravbhu (2010) by the Supreme Court.

Advocate for the opposite party argued that without consent of the complainant, the proceeding u/s 138 of NI Act cannot be compounded at any stage.

In recording such submissions and considering the Apex Court judgements on the issue, the Court accepted the submissions advanced by the opposite party and held that by not taking the complainant's consent, compounding cannot be held by violating the principle enumerated in Section 320 of the Cr.P.C.

Citation: 2023 LiveLaw (Cal) 299

Case: Dilip Adhikary Vs. Basanta Nath

Case No: CRR 3353 of 2018

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