M Govindaraju, S/o Late Sri Muniyappa, vs Sri N.R Narasimha S/o late N Rangappa

Petitioner and respondent are present. Both of them

are represented by their respective counsels, are also

present before this Court.

The parties have filed an application under Section

147 of the Negotiable Instruments Act, 1881 r/w Section 482

of Cr.P.C., seeking permission to compound the offences and

consequently, to quash the sentence passed by the trial

court for the offence under Section 138 of the Negotiable

Instruments Act. Both the parties have admitted the

execution of the Compromise Petition and submitted that

they have no objection to record the compromise and pass

appropriate orders.

The peculiarity of this case requires to be

considered by this Court. It is the case where the petitioner

was convicted by the trial court in C.C.No.40185/2010 for

the offences punishable under Section 138 of the Negotiable

Instruments Act, imposing a fine of Rs.5,10,000/-. Out of

that Rs.5,00,000/- was awarded as compensation to the

complainant therein. The said judgment was challenged

before the Fast Tract Court-IX, Bengaluru City, in

Crl.A.No.684/2014 and the said appeal came to be

dismissed affirming the judgment and sentence passed by

the trial court. Being aggrieved by the above said two

judgments, the petitioner-accused has also approached this

Court in Crl.Revision Petition No.1013/2014. This Court

vide judgment dated 19.1.2017 dismissed the said revision

petition. Therefore, the concurrent findings of the conviction

and sentence passed by the trial court and Appellate court

have been confirmed by this Court. Thereafter it appears the

parties have compromised the matter. There is no

proceedings as such pending anywhere as on today except

the present petition. Once the judgment is passed by this

Court, normally court will become functus officio for the

purpose of recording the compromise petition. However, the

Apex Court in a decision reported in 2010(1) Supreme

Court Cases 798, in the case of K.M. Ibrahim Vs. K.P.

Mohammed and another, has treated section 138 of the

N.I.Act as a separate independent distinct proceedings,

where compounding can be recorded after disposal of the

case and even after appeal being disposed of. It is worth to

refer to para No.12 to 15 of the judgment of the Apex Court .

"12. Apart from the above, this Court is further empowered under Article 142 of the Constitution to pas appropriate orders in line with sub- section(8) of Section 320 Cr.P.C. in an application under Section 147 of the aforesaid Act, in order to do justice to the parties.

As far as the non obstante 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 over riding effect over the provisions of the Code relating to compounding of offences. The various decisions cited by Mr. Rohatgi on this issue do not add to the above position.

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.

Since the parties have settled their disputes, in keeping with the spirit of Section 147 of the Act, we allow the parties to compound the offence, set aside the judgment of the courts below and acquit the appellant of the charges against him.

It is clear from the above said observations of the

Apex Court that the proceedings under Section 138 of the

N.I. Act is a special enactment and Section 147 of the N.I.Act

is a special provision incorporated in the said enactment.

Section 147 of the enactment cannot be compared with

Section 320 of Cr.P.C. wherein Section 320 Cr.P.C. only

refers to compounding of offences when the matter is

pending before the trial court or before the Appellate Court

or in any other proceedings which is pending between

parties. But Hon''ble Supreme Court has observed that even

after disposal of the case, Section 147 of the N.I. Act can be

invoked by the parties to get rid of the sentence passed by

the trial court. Therefore, in view of the above said decision

of the Apex Court, Section 482 of Cr.P.C. can be exercised

by this Court in order to facilitate the parties, particularly

whenever compromise took place under N.I. Act, and more

particularly when the parties filed an application under

Section 147 of Cr.P.C. Though, this procedure cannot be

applied to other cases and this decision cannot be treated as

a precedent so far as IPC offences are concerned, this should

be independently dealt with based on the facts and

circumstances of each case.

In view of the above said observations, I do not find

any strong reason to reject the application filed under

Section 147 of the N.I. Act. Hence, recording of compromise

between the parties even after disposal of the appeal or

revision petition by this Court, it is just and necessary to

quash the sentence passed by the trial court. Hence, the

following:

ORDER

The petition is allowed. Consequently, sentence

passed by the trial court in C.C.No.40185/2010 on the file

of the XX Addl. Chief Metropolitan Magistrate, Bengaluru,

for the offence punishable under Section 138 of the N.I. Act

is quashed. Any bail bonds and surety bonds executed by

the accused and surety shall also stand cancelled.

The respondent has no objection for the petitioner-

accused to receive the amount, if any, deposited by him

before any court in connection with this case, as the

respondent has received the entire amount when the petition

is pending before this Court.