S.B. Criminal Misc. Petition No. 419 of 2011

17th January, 2012

Petitioner Counsel: Mr. O.P. MEHTA

Cases Cited:
Damodar S. Prabhu Vs. Saiyed Babalal H., 2010 ALL MR (Cri) 1967 (S.C.) =AIR 2010 SC 1907 [Para 2,3,5,8]
Rajneesh Aggarwal Vs. Amit J. Bhalla, 2001 ALL MR (Cri) 1508 (S.C.) =(2001) 1 SCC 631 [Para 8]

JUDGMENT

JUDGMENT :- The present misc. petition has been filed by the petitioner being aggrieved by the order dated 20.01.2011 passed by the learned Sessions Judge, Jodhpur in Criminal Revision No.231/2010 affirming the order dated 17.06.2010 passed by the learned Judicial Magistrate No.1, (N.I.Act Cases), Jodhpur, whereby, the application filed by the petitioner accused for compounding the case was rejected.

2. Learned counsel submits that during the pendency of the trial, the accused as per the directions and guidelines issued by the Hon'ble Apex Court in the case of Damodar S. Prabhu Vs. Saiyed Babalal H., reported in AIR 2010 SC 1907 : [2010 ALL MR (Cri) 1967 (S.C.)] submitted an application before the trial court under Section 147 of the N.I. Act and also offered to pay the cheque amount plus ten percent of the cheque amount to be deposited with the Legal Services Authority for the purpose of compounding of the offence, but the learned trial Judge has illegally rejected the said application and the revision filed against such rejection has also been dismissed as per his submission without any justification.

3. Learned counsel submits that the orders of the courts below are absolutely illegal and have been passed in total disregard of the directions and guidelines issued in the case of Damodar S. Prabhu, [2010 ALL MR (Cri) 1967 (S.C.)] (supra). Thus, he submits that the orders of the learned courts below be set aside and the learned Magistrate be directed to compound the matter and pass order of acquittal.

4. I have heard learned counsel for the petitioner, perused the orders of the learned courts below and have considered the arguments advanced at bar and the dictum of their Lordships in the case of Damodar S. Prabhu as referred to above.

5. In the opinion of this Court, it is true that the Hon'ble Apex Court has laid down guidelines in the case of Damodar S. Prabhu, [2010 ALL MR (Cri) 1967 (S.C.)] (supra) in relation to the manner in which the compromise applications in N.I. Act matter have to be dealt with but nowhere in the said judgment, it has been mentioned that even if the application for compromise is contested, then too, the court is under an obligation to compound the offence. The Hon'ble Apex Court has held that the provision of Section 320(9) Cr.P.C. is not applicable to the procedure for compounding the offence under Section 138 of the N.I. Act. But the other provisions mentioned in the said Provision have not been excluded from applicability. In the opinion of this Court, unless and until the person aggrieved of the offence agrees to application for compounding, the court is not under an obligation to accept the same as has been mentioned in the orders impugned. The complainant in this case was not agreeable to the application for compounding the offence filed by the accused for offence under Section 138 of the N.I. Act.

6. He by contesting the application is entitled to seek the punishment of imprisonment for a term which may extend to two years or with a fine which can be twice of the amount of the cheque or both to be awarded to the accused. Thus, if the complainant is not agreeable to the application for compromise, then, he can very well pursue his complaint for the purpose of seeking these sentences to the accused.

7. This Court is of the firm opinion that merely because the accused has filed the application for compromise/compounding of the offence, the trial court is not under an obligation to accept the same unless agreed to or subscribed to by the applicant.

8. The Hon'ble Apex Court in the case of Damodar S. Prabhu, [2010 ALL MR (Cri) 1967 (S.C.)] (supra) has not observed or held that the application for compromise has to be accepted even if the same is not filed or accepted by the complainant. The Hon'ble Apex court while laying down the guidelines in the manner in which the compounding applications are to be dealt with as laid down in Guideline No.(i)(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. Thus, the Hon'ble Apex Court consciously used the word may in the said judgment. Had the intention of the Hon'ble Apex Court been to convey the interpretation or direction that the compounding application being filed has to be accepted without the consent or acceptance of the complainant, then, the word shall would have been used instead of the word may. In the case of Rajneesh Aggarwal Vs. Amit J. Bhalla, reported in (2001) 1 SCC 631 : [2001 ALL MR (Cri) 1508 (S.C.)], the Hon'ble Apex Court whilst considering the similar issue has held that once the offence is committed any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding sentence, it may have some effect on the court trying the offence. But by no stretch of imagination, a criminal proceeding could be quashed on account of deposit of money in the court.

9. In view of the aforesaid discussion, the misc. petition being bereft of force is hereby dismissed. Stay petition also stands disposed of.

Petition dismissed.