Sudhir Kumar & Anr. vs Sombir Singh

… Petitioners

Versus

... Respondent

-.-CORAM: HON'BLE MR. JUSTICE VIRINDER AGGARWAL Present:- Mr. Aditya Kochar, Advocate for the petitioners.

-.-VIRINDER AGGARWAL, J. (Oral)

Second petition under Section 528 of the BNSS, 2023 (erstwhile Section 482 Cr.P.C.) seeking quashing of the impugned order dated 05.09.2024 (Annexure P-8) passed by the JMIC, Gurugram, whereby the application (Annexure P-7) preferred by the petitioners seeking permission to compound the offence arising out of complaint bearing NACT/23750/2018 dated 06.07.2018, titled Sombir Singh vs. Sudhir Kumar, under Section 138 of the N.I. Act (Annexure P-1), has been dismissed, contrary to the principles and guidelines laid down by the Hon’ble Supreme Court in Damodar S. Prabhu vs. Sayed Babalal H., 2010(5) SCC 663.

It is pertinent to mention that the first petition, seeking the same relief, was dismissed as withdrawn by this Court on 01.07.2026.

Briefly stated, the complainant/respondent instituted proceedings under Section 138 of the Negotiable Instruments Act alleging that the petitioners purchased 4 Kanals of land at Village Farrukhnagar, District Gurugram, under registered sale deed No.2899 dated 28.12.2017. Towards consideration, three cheques issued in favour of the complainant were presented on 09.05.2018 but dishonoured with the remarks “Funds Insufficient”, leading to the complaint.

Learned counsel for the petitioners argued that the petitioners have demonstrated their bona fides by tendering the entire principal cheque amount of ₹24,00,000/- through demand draft No.544793 dated 04.09.2024 before the Trial Court and remain willing to pay reasonable interest, compensation and litigation costs as may be directed by this Court. It was submitted that proceedings under Section 138 of the N.I. Act are predominantly compensatory in character and that Section 147 of the N.I. Act expressly facilitates compounding of the offence. Reliance was placed upon Damodar S. Prabhu vs. Sayed Babalal H., 2010(5) SCC 663, emphasising that compounding should be encouraged at the earliest stage to secure the ends of justice and avoid unnecessary continuation of criminal proceedings.

Learned counsel further relied upon A.S. Pharma Pvt. Ltd. vs. Nayati Medical Pvt. Ltd., 2024 INSC 690, to submit that consent of the complainant is relevant to compounding under Section 147 of the N.I. Act; however, the petitioners are ready to satisfy any lawful condition, including payment of appropriate costs or compensation, to facilitate resolution of the dispute. Reliance was also placed upon M/s Meters and Instruments Private Limited vs. Kanchan Mehta, 2018(1) SCC 560, in support of the compensatory object underlying proceedings under Section 138 of the N.I. Act. It was, accordingly, submitted that, in view of the tender of the entire principal amount and the petitioners’ willingness to comply with any reasonable terms imposed by this Court, continuation of the prosecution would serve no useful purpose. Learned counsel, therefore, prayed that appropriate relief be granted under Section 528 of the BNSS, 2023/Section 482 Cr.P.C. and the petition be allowed.

Since the present petition is being considered and disposed of in limine, issuance of notice to the respondent is not considered necessary. Accordingly, the petition is being taken up and decided without notice to the respondent.

Having heard learned counsel for the petitioners and, with his able assistance, having perused the paper book, this Court finds that the controversy centres around the petitioners’ prayer for compounding of the offence under Section 138 of the N.I. Act without the consent of the respondent-complainant. The petitioners had sought such relief before the Trial Court on the premise that the entire cheque amount had been paid. The Trial Court, however, declined the prayer, noticing that the respondent-complainant had not consented to the compounding and that mere subsequent payment of the cheque amount, by itself, does not extinguish the offence or confer an indefeasible right upon the accused to have the prosecution compounded.

The petitioners have relied upon Damodar S. Prabhu’s case (supra) and M/s Meters and Instruments Private Limited case (supra). However, the reliance is misplaced in the facts of the present case. Damodar S. Prabhu’s case primarily lays down the framework for encouraging and regulating compounding under Section 147 of the N.I. Act, including the imposition of graded costs depending upon the stage at which compounding is sought; it does not dispense with the requirement of consent where the complainant does not agree to compound the offence. Likewise, the observations in M/s Meters and Instruments Private Limited case (supra) concerning the compensatory object of Section 138 cannot be construed as conferring an absolute right upon the accused to secure compounding merely upon tender or payment of the cheque amount.

The subsequent pronouncement of the Hon’ble Supreme Court in A.S. Pharma Private Limited case (supra), assumes significance in the present factual matrix, wherein the Hon’ble Supreme Court has reiterated that an offence under Section 138 of the N.I. Act can be compounded under Section 147 thereof only with the consent of the complainant. In the present case, the respondent-complainant has admittedly not consented to the proposed compounding. Consequently, the petitioners cannot claim compounding as a matter of right merely on the basis of having tendered or paid the cheque amount.

The impugned order, therefore, does not suffer from any jurisdictional error, perversity or material infirmity warranting interference in exercise of the inherent jurisdiction of this Court. Without expressing any opinion on the merits of the complaint, the present petition is found to be devoid of merit and is, accordingly, dismissed. However since petitioners have already paid the cheque amount and willing to pay interest and compensation. Learned trial Magistrate is directed to refer the matter to mediation centre for exploring the possibility of amicable settlement.

By virtue of the final determination of the main cause, all pending interlocutory and ancillary applications stand automatically disposed of. The final adjudication of the core controversy has effectively extinguished the substratum of these pending applications, rendering them infructuous and precluding the need for separate judicial intervention or formal orders.

( VIRINDER AGGARWAL)

23.09.2026 JUDGE