Desire Credentials and Another vs Dada Motors

Jaswant Singh, J.—Present revision petition has been filed by the Petitioner proprietorship firm through its proprietor Petitioner No. 2 praying for setting aside order passed by the learned JMIC, Dasuya dated 25.2.2010 whereby the Petitioner No. 2 has been convicted and sentenced for six months rigorous imprisonment with Rs. 5000/- as fine for an offence punishable u/s 138 of the Negotiable Instruments Act; and for quashing of the appellate court order dated 5.10.2010 whereby the appeal has been dismissed.

Petitioner proprietorship firm was the marketing agent for a finance company whereas Respondent-complainant is engaged in the business of selling tractor parts and agricultural implements. On account of a dispute over a liability, the cheque presented by the complainant for an amount of Rs. 1,20,000/- was dishonoured resulting into the filing of the complaint by the Respondent u/s 138 of the Negotiable Instruments Act after following the due process of law.

Learned trial court vide order dated 25.2.2010 has convicted the Petitioner as aforesaid.

Learned Counsel for the Petitioners states that after the dismissal of the appeal the parties have arrived at a compromise whereby the complainant has received an amount of Rs. 1,20,000/- towards full and final settlement of dispute. He accordingly prays for compounding of the offence. He further states that the Petitioner is in custody since 5.10.2010.

Notice of motion.

At this stage Mr. Manjul Sud, Advocate puts in appearance for the Respondent-complainant and has filed the affidavit of Respondent No. 2 Gursurinder Jain, which is taken on record.

Respondent-complainant is present in court and has been identified by his counsel. He has stated in court that he has received an amount of Rs. 1,20,000/- towards full and final settlement and he has no objection if the offence is compounded and the conviction and sentence of the Petitioner is set aside.

Learned Counsel for the Petitioner undertakes to deposit a sum of Rs. 18,000/- as costs towards 15% of the cheque amount in the light of the decision of the Hon''ble Supreme Court rendered in Damodar S. Prabhu v. Sayed Babalal H. 2010(2) RCR (Cri) 851.

The legal position that the offence u/s 138 of the Act, in view of the provisions of Section 147 of the Act, can be compounded even after the conviction, at the stage of revision is no longer res-integra, Hon''ble Supreme Court in the case of 2000 (1) OLR 400 (SC) permitted the compounding of the offence despite conviction and sentence upheld at three stages after the convict had discharged his debt liability to the satisfaction of the complainant. Similar view was reiterated in Shailesh Shyam Parsekar v. Baban @ Vishwanath (2005)4 SCC 162 and Rama Reddy v. Annapurna Seeds and Anr. (2005)10 SCC 632. Recently, the Hon''ble Supreme Court in Vinay Devanna Nayak v. Ryot Seva Sahakari Bank Ltd. 2008(1) RCR has set aside the conviction and sentence recorded and affirmed upto the High Court and thereby acquitted the offender of the charges levelled against him in view of the matter having been compromised after discharging of the debt liability.

Keeping in view the aforesaid settled legal position and the fact that the Petitioner has discharged his entire debt liability to the satisfaction of the complainant, this Court is of the opinion that there is no legal impediment in invoking the powers u/s 147 of the Act and compounding the offence.

After hearing Counsel for the parties and keeping in view the fact that the complainant has received his amount and has no objection if the petition is allowed and the offence is compounded and sentence is set aside. This is however subject to the Petitioner depositing a sum of Rs. 18,000/- with the State Legal Services Authority Punjab, Chandigarh as costs. It is clarified that the Petitioner No. 2 shall be released only on furnishing the proof of deposit of costs.