138 NI Act- High Court Can Nullify An Order Of Conviction Even After The Revisional Stage On the Basis Of Settlement Between Parties: Allahabad HC

The Bench went on to add that this the principle would not help any convict in any other law where other applicable independent provisions were existing as the offence punishable under section 138 of the N.I. Act was distinctly different from the normal offences made punishable under Chapter XVII of IPC (i.e. the offences qua property).

Noting that the parties had settled the dispute amicably, Justice Chandra Dhari Singh held that the compounding of the offence was required to be permitted.

The case in brief:

A petition under Section 482 CrPC was filed with the prayer to compound the offence committed under section 138 and to quash the sentence of one year awarded to the petitioner.

The petitioner and opposite party no.2 had a business relationship during the course of which, the petitioner had issued two cheques each of Rs.1,00,000/- in favour of opposite party no.2 that bounced due to insufficient fund.

Subsequently a complaint case was filed in which the court went on to convict the petitioner and sentence him to 1 year of simple imprisonment and fine of Rs.3,00,000/-

The petitioner had then preferred a Criminal Appeal before the Additional Sessions Judge, Faizabad and at the time of hearing he had deposited Rs.1,00,000/- (one lakh).

Ultimately the appeal was dismissed in December, 2020 against which the petitioner had preferred a Criminal Revision before the High Court which too had been dismissed at the admission stage.

After the dismissal of the criminal revision, the opposite party no.2 and the petitioner entered into settlement through his father.

On January 22, 2021 the petitioner and the opposite party no.2 amicably entered into the agreement, which was also placed on record.

Thus, the accused-petitioner moved the high court under section 482 for compounding the offence and quash the prison sentence.

Submissions made:

Advocates Naved Ali and Sandeep Yadav argued that the petition under section 482 CrPC was maintainable after the dismissal of the revision on merit. They relied upon the judgment of Gujarat High Court in the case of Kripal Singh Pratap Singh Ori vs. Salvinder Kaur Hardip Singh.

The petitioner further submitted that since the object of NI Act was primarily compensatory and not punitive, section 147 of NI Act would have an overriding effect on section 320 Cr.P.C. This was irrespective of the stage at which the parties were compromising with the kind leave of the Court.

The petitioner also relied on the case of Damodar S. Prabhu vs. Sayed Babalal H, where the Apex Court had formulated the guidelines for compounding the offence under section 138.

On the other hand, AGA Alok Saran, submitted that the petition was not maintainable as the petitioner had already been convicted by the court below and the conviction order had been upheld by the appellate court and by the High Court in the revision.

He argued that when the High Court had already rejected the revision application on merits, whether the parties or any one of them could be permitted to place compromise and get an order of acquittal from this very Court, was the question.

In view of the provisions of Sub-section (6) of Section 320 Cr.P.C. and the observations made by the Supreme Court in the case of Tanveer Aquil vs. State of M.P. and another, the AGA went on to argue that the parties should be relegated to the Apex Court to initiate appropriate proceedings to get the actual affect of compromise arrived at between the parties.

After considering the facts narrated before it, the following question arose for consideration before the High Court –

Whether an order passed by the High Court in the criminal revision petition confirming the conviction can be nullified by the High Court in a petition filed under section 482 Cr.P.C. noticing subsequent compromise of the case by the contesting parties?

Findings of Court:

The Court noted that inherent powers under section 482 could only be exercised when no other remedy was available to the litigant and not where a specific remedy was provided by the statute.

The Court also refused to agree with the notion that when the adjudication of a criminal offence had reached to the state of revisional level, a compromise without permission of the court could be compounded only if High Court or Court of Sessions grants permission for such purpose.

"...it is true that this Court had dismissed the criminal revision and upheld the conviction and sentence passed by the court below but it cannot be lost sight of the fact that this Court has the power to intervene in exercise of the powers vested under section 482 Cr.P.C. only with a view to do the substantial justice or to avoid miscarriage and the spirit of the compromise arrived at between the parties. This is perfectly justified and legal too."

In the backdrop of a progressive and pragmatic principle accepted by courts that, if possible, the parties should be provided justice at the door step, the court was forced to think and reach to a conclusion that the present situation could be a special circumstance for the purpose of compounding the offence under section 147 of the NI Act.

"It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect", further opined Justice Singh

Accordingly, the conviction and sentence stood annulled.

The Court went on to direct the petitioner to pay costs of Rs.5000/- to the respondent - State. Also, the amount of Rupees one lakh so deposited by the petitioner was ordered to be released in favour of opposite party no.2.