[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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