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Negotiable Instrument Act - 138 - cheque - compounding

[2014 ACD 826 (MAD)]
(C. T. SELVAM, J.)
Petitioner
VERSUS
Respondent
Cri. O P. Nos. 8352 and 6556 of 2014-Decided on 2-4-2014.
Negotiable Instruments Act (26 of 1881), Ss. 138, 147 - Compounding - Allowed - Complaint of dishonour of cheque resulted in conviction upto revision - Compromise between both parties - Amount received by complainant as full and final settlement - Joint compromise memo by both parties - Compounding allowed with Rs 25000/- cost to be paid to legal services authority.
(Para 5)
Cases Referred:
Chronological Para
AIR 2010 SC 1907
3
2007 CriLJ 1865 (Ker)
4
2006 CriLJ 1922 (Ker)
4
AIR 2003 SC 1386
4
AIR 2001 SC 43
4
AIR 2001 SC 43
4
AIR 2001 SC 2185
4
AIR 1994 SC 1544
4
1993 CriLJ404 (Ker)
4
1990 SCC (Supp) 63
4
1990 Cri LJ 1599 (SC)
4
AIR 1981 SC 736
4
AIR 1980 SC 258
4




Advocate(s): N. Anand Venkatesh, for Petitioner;
R. Subburaj, C. Emalias, Additional Public Prosecutor, for Respondent.
1.      Petitioner in Cri. O. P. No. 8352 of 2014 faces prosecution for offence under Section 138 of the Negotiable Instruments Act, in C. C. No. 3359 of 2006 on the file of learned IX Metropolitan Magistrate, Saidapet, Chennai, pursuant to a complaint preferred by the respondent in Cri. OP. No. 8352/2014. The said case ended in a conviction and the petitioner was sentenced to one year imprisonment, with a further direction to pay Rs. 4,00,000/- as compensation, in default, to undergo 3 months imprisonment, under judgment dated 08.08.2008. The petitioner/accused preferred appeal as against the said conviction before III Additional Sessions Judge, City Civil Court, Chennai, and the appellate Court confirmed the order of trial Court, vide judgment dated 10.02.2009. A further revision was moved before this Court in Cri. R. C. No. 273 of 2009, which was dismissed under order dated 15.11.2011, thereby confirming the judgments of the Courts below.
2.    The present petition in Cri. O. P. No. 8352 of 2014 is filed informing a compromise arrived at between the petitioner/accused and the respondent/de facto complainant and of the respondent having received a sum of Rs. 4,00,000/- in full quit and further that the respondent has also agreed to co-operate for compounding the offence committed by the petitioner/accused. A joint memo of compromise dated 01.04.2014 signed both by the petitioner/accused and the respondent/de facto complainant and attested by twp witnesses confirm such position.
3.     Towards supporting the submission of learned counsel for petitioner/accused that principle of functus officio would not apply even after the dismissal of the revision filed before this Court, he relied on the judgment of the Apex Court in Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 : (AIR 2010 SC 1907). The following paragraphs in the said decision are relevant.
"15. The compounding of the offence at later stages of litigation in cheque bouncing cases has also been held to be permissible in a recent decision of this Court, reported as K. M. Ibrahim v. K. P. Mohammed7 wherein Kabir, J. has noted (at SCC p. 802, paras 13-14):
"13. As far as the non obstinate clause included in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of offences      
14.    It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the appellate forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution."
16.    It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary [cited from: K. N. C. Pillai, R. V. Kelkar's Criminal Procedure, Fifth Edn. (Lucknow: Eastern Book Company, 2008) at p. 444]:
17.2. Compounding of offences.—A crime is essentially a wrong against the society and the State: Therefore any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. However, where the offences are essentially of a private nature and relatively not quite serious, the Code considers it expedient to recognise some of them as compoundable offences and some others as compoundable only with the permission of the court."
17.    In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act—Tackling an avalanche of cases (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009) at p. 5]:
"Unlike that for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque.
If we were to examine the number of complaints filed which were 'compromised' or 'settled' before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued."
18.    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. There is also some support for the apprehensions raised by the learned Attorney General that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit during the later stages of litigation thereby contributing to undue delay in justice delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. Furthermore, the written submissions filed on behalf of the learned Attorney General have stressed on the fact that unlike Section 320, Cr. P. C, Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court.
19.    As mentioned earlier, the learned Attorney General's submission is that in the absence of statutory guidance, parties are choosing compounding as a method of last resort instead of opting for it as soon as the Magistrates take cognizance of the complaints. One explanation for such behavior could be that the accused persons are willing to take the chance of progressing through the various stages of litigation and then choose the route of settlement only when no other route remains. While such behavior may be viewed as rational from the viewpoint of litigants, the hard facts are that the undue delay in opting for compounding contributes to the arrears pending before the courts at various levels. If the accused is willing to settle or compromise by way of compounding of the offence at a later stage of litigation, it is generally indicative of some merit in the complainant's case. In such cases it would be desirable if parties choose compounding during the earlier stages of litigation. If however, the accused has a valid defence such as a mistake, forgery or coercion among other grounds, then the matter can be litigated through the specified forums.
20.    It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate, First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal.
In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3) (a), Cr. P. C. ; thereafter a revision to the High Court under Sections 397/401, Cr. P. C. and finally a petition before the Supreme Court, seeking special leave to appeal under Section 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation.
In the case of acquittal by JMFC, the complainant could appeal to the High Court under Section 378 (4), Cr. P. C., and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings.
21.   With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:
THE GUIDELINES
(i) In the circumstances, it is proposed as follows:
(a)    That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.
(b)    If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the court deems fit.
(c)     Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.
(d)    Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.
22.   Let it also be clarified that any costs imposed in accordance with these Guidelines should be deposited with the Legal Services Authority operating at the level of the court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate's Court or a Court of Session, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority."
4.    Learned counsel also relied upon the judgment of the Kerala High Court in Sabu George v. Home Secretary, Department of Home Affairs, New Delhi, (2007 Cri LJ 1865). In the said decision, in paragraphs 15 to 26, it is observed as follows:
15.    But then, such a conclusion also creates further problems. If the verdicts of guilty, conviction and sentence have become final, which Court would accept the same so as to avoid execution of the sentence, which has, become final. If the trial/appeal/revision is already over, such original, trial and revisional court would become functus officio and they will not have jurisdiction to alter their verdicts and to convert the verdict of guilty and conviction to a deemed acquittal under Section 320(8). The language of Section 362, Cr. P. C. which I extract below, makes the position clear. S. 362. Court not to alter judgment. -Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." Therefore the judgment, which has already been rendered, cannot be altered by the trial court, appellate court or the revisional court. The decision in State of Kerala v. M. M. Manikantan Nair (AIR 2001 SC 2145) is clear authority for the proposition that a Court, which has become functus officio, cannot thereafter pass any orders in such a case. I extract para 7 of the said judgment for this proposition:
"This Court in Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169: (2000 AIR SCW 3848: AIR 2001 SC43:2001 CriLJ 128), held that Section 362 of the Criminal Procedure Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error and that this section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by the Court of competent jurisdiction."
(Emphasis supplied)
Therefore, it is evident that a trial, appellate or revisional Court, which has become functus officio cannot accept a subsequent composition and alter its own earlier judgment and convert the same to a deemed acquittal under Section 320 (8), Cr. P. C. It is unnecessary to refer to other precedents. Binding precedents of the Supreme Court make it clear that a Court - Original, appellate or revisional, which has finally disposed of the matter cannot thereafter exercise any such powers which it could have invoked and exercised prior to such final disposal.
16.   If the trial, appellate and revisional court cannot do the same and the composition is legally permissible, the question necessarily will have to be considered as to which court can and in what manner the accused, the offence against whom has been compounded in accordance with law, can be saved from the trauma of suffering the sentence.
17.   It is here that the next question arises as to whether powers under Section 482, Cr. P. C. can be invoked by this Court to give effect to such a composition which has been legally arrived at, but for the acceptance of which, there is no specific stipulation of law. Section 482, Cr. P. C. reads as follows:
"S. 482. Saving of inherent powerS'6f High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends ofjustice."
18.    Precedents galore to indicate the sweep, width and amplitude of the inherent powers of this Court under Section 482, Cr. P. C. Section 482 does not really confer any power on the High Court exercising criminal jurisdiction. It only saves the inherent powers of the High Court, which was always there. Ex debito justitiae such powers can be invoked and such powers were always available with the court. The width and amplitude of such powers must necessarily instill in the mind of the Court the need to be circumspect. But such powers are not fettered by any stipulations of the Code. If there be any doubt on this proposition, it will be apposite to refer to the decision in Raj Kapoor v. State (1980) 1 SCC 43) : (AIR 1980 SC 258). Justice Krishna Iyer in paragraph 10 of that decision refers to the powers under Section 482, Cr. P. C. in the following words:
"10. The first question is as to whether the inherent power of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code."
(Emphasis supplied)
19.    Later, the Supreme Court had occasion to specifically consider whether the stipulations under Section 320, Cr. P. C. would fetter the powers of the High Court under Section 482, Cr. P. C. The decision in B.S. Joshi v. State of Haryana (AIR 2003 SC 1386) makes the position clear and the Supreme Court speaks thus through Justice Y. K. Sabharwal in paragraphs 8 and 15:
"8. It is, thus, clear that Madhu Limaye's case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in S. 482 of the code or extraordinary power under Art. 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the end of justice, quashing of FIR becomes necessary, S. 320 would not be a bar to the exercise of power of quashing, it is however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power."
"15. In view of the above discussion, we hold that in the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and S. 320 of the Code does not limit or affect the powers under S. 482 of the Code."
(Emphasis supplied)
These observations were made while considering the question of quashing an F.I.R. But there is nothing to show that the principle will not apply when the question of quashing a sentence which has become final is considered when the offence is legally compounded.
20.    A Full Bench of this Court had looked at the sweep of the powers under Section 482, Cr. P. C, though in a different context, and the rationale underlying in Section 482, Cr. P. C. is expressed by the Full Bench in the following words in Moosa v. Sub-Inspector of Police (2006 (1) KLT 552): (2006 Cri LJ1922 (Ker)).
"No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. In exercise of the powers court would be justified to quash any proceedings if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends ofjustice."
(Emphasis supplied)
21.    Having so understood the sweep of the powers under Section 482, Cr. P. C, I need only mention that the powers under Article 226/227 of the Constitution are coextensive if not wider in its sweep. The powers under Section 482, Cr. P. C. as also Article 226 and 227 of the Constitution are available with the Court to do justice in a given case when the conscience of the Court is satisfied that powers must be invoked.
22.    It will be apposite to straight away look at Section 320, Cr. P. C. again. Section 320 does not specifically refer to composition prior to the commencement of the prosecution or of composition after the sentence has become final. Section 320, which must be reckoned as consolidating the law relating to composition, does not specifically refer to pre-cognizance and post-finality (of conviction) compositions. Section 320 (9), Cr. P. C. only says that there shall be no composition except in accordance with the provisions of Section 320, Cr. P. C. In as much as Section 320 does not specifically refer to compositions - pre-cognizance or post-finality, and Section 320 (1) only speaks of composition without any fetters or limitations about time and stage, section 320 (9) cannot be held to fetter the powers in such situations.
23.    The rationale underlying Section 482, Cr. P. C. is that the interests of justice may at times transcend the interests of mere law. In the peculiar facts and circumstances of a given case when the High Court considers it necessary, proper and fit and feels impelled and compelled to act in aid of justice, it should not be without powers and helpless. While appreciating the width and amplitude of the powers under Section 482, Cr. P. C. this principle cannot be lost sight of. Of course if there is a specific express bar or if the stipulations point to an implied bar, such powers cannot normally be invoked.
24.    We now come to the crucial question as to whether this court, having already disposed of the revisions, can invoke the, powers under Section 482, Cr, P. C. The revision has been disposed of and the verdict of guilty, conviction and sentence have now become final. I have come across decisions which stipulate that in view of Section 362, even this Court exercising original power as a criminal court under Section 482, Cr. P. C, cannot go against the mandate of Section 362. The decision in Smt. Sooraj Devi v. Pyare Lai & Anr. (1981) 1 SCC 500) : (AIR 1981 SC 736) clearly holds that after the judgment is pronounced, on the same facts powers under Section 482, Cr. P. C. cannot be invoked in view of the specific bar under Section 362. This position has been held repeatedly. In Hari Singh Mann v. Harbhajan Singh Bajwa (AIR 2001 SC 43), it was held by the Supreme Court as follows in paragraphs 8 and 9:
"8. xxx xxx
The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the Court.
9. There is no provision in the Code of Criminal Procedure authorizing the High Court to review the judgment W.P.C. No. 34540 of 2006 & connected cases passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such power cannot be exercised with the aid or under the cloak of Section 482 of the Code."
In State of Kerala v. M. M. Manikantan Nair (AIR 2001 SC 2145) the Supreme Court held so in paragraph 6:
"6. The Code of Criminal Procedure does not authorize the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal Court can review its own judgment or order after it is signed."
In Moti Lal v. State of Madhya Pradesh (AIR 1994 SC 1544) the Supreme Court held so in paragraph 2:
"2. Section 362, Cr. P. C. in clear terms lays down that the Court cannot alter judgment after the same has been signed except to correct clerical or arithmetical errors. That being the position the High Court had no jurisdiction under Section 482, Cr. P. C. to alter the earlier judgment."
In Damodaran v. State (1992 (2) KLT 165) : (1993 Cri LJ 404 (Ker)) and in Tanveer Aquil v. State of Madhya Pradesh (1990 Suppl. SCC 63) we find observations which suggest that a post revision composition cannot be readily accepted. Those decisions, according to me, only reiterate the principle that a trial, appellate or revisional court which is functus officio in respect of a subject matter cannot thereafter exercise powers in respect of such disposed of matters in view of Section 362, Cr. P. C.
25.    But these decisions cannot be held to cover a situation when post-revision there has been a substantial change in the circumstances and a later request is made in a separate application under Section 482, Cr. P. C. or Article 226 of 227 of the Constitution. That question was specifically considered by the Supreme Court in Mostt. Simrikhia v. Smt. Dolley Mukheijee (1990 Cri LJ 1599). In paragraph 2 of the said decision, the Supreme Court has observed thus:
"If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there are no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under S. 362."
26.    In the instant cases, when the revision petition was disposed of by this Court, this circumstance - that the parties settled the dispute and the complainant compounded the offence - was not there at all. It is a subsequent change in circumstance. The decision in Mostt. Simrikhia (supra) squarely applies. That was a case where an earlier application under Section 482, Cr. P. C. was dismissed, but still the Supreme Court held that a change in circumstances is sufficient to justify the invocation of the powers afresh under Section 482, Cr. P. C. notwithstanding the bar under Section 362, Cr. P. C. In the instant case, the powers under Section 482, Cr. P. C. have not been sought to be invoked earlier. Only the revisional powers were exercised. That is all the more the reason why under the changed circumstances the extra ordinary inherent jurisdiction under Section 482, Cr. P. C. can be invoked. In the light of the dictum in Mostt. Simrikhia earlier decisions rendered and subsequent decisions, which do not refer to the said decision specifically and in which the opinion is expressed that the powers under Section 482, Cr. P. C. cannot be invoked after disposal of the revision in view of the bar under Section 362, cannot be held to lay down the law correctly.
5.    In the light of the above judgments, as also the compromise entered into between parties, Crl. O. P. No. 8352 of 2014 shall stand allowed, with costs of Rs. 25,000/- payable by the petitioner to the Tamil Nadu State Legal Services Authority, within a period of two (2) weeks from the date of receipt of a copy of this order.
6.    In view of the order passed in Crl. O. P. No. 8352 of 2014, Crl. O. P. No. 6556 of 2014 shall stand closed.

Order accordingly.

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