K.V. Antony vs J. Sherafudin and Others

M.M. Pareed Pillay, C.J.—Complainant in S.T.2 of 1992 of the Court of the Judicial Magistrate of First Class - II, Alappuzha is the revision petitioner in Crl. R.P. 16 of 1994. Revision petitioners in Crl. R.P. 1108 of 1994 are accused 1 and 2 in the same case. For the sake of convenience the position of the parties as it stood in the trial Court is followed in the discussions here under.

Petitioner filed the complaint against accused 1 and 2 alleging offence punishable u/s 138 of the Negotiable Instruments Act. Learned Magistrate found, accused 1 and 2 guilty of the offence and convicted and sentenced them to pay a fine of Rs. 1,500/- each and in default of payment of fine to undergo simple imprisonment for a period of one month each. Conviction and sentence were confirmed by the Additional Sessions Judge, Alappuzha in Crl. A. 141 of 1993. Challenging the conviction and sentence accused 1 and 2 have filed Crl. R.P. 1108 of 1994, whereas the complainant filed Crl. R.P. 16 of 1994 on the ground that the mandatory and statutory principles enunciated u/s 138 of the Negotiable Instruments Act in awarding the sentence was not followed by the Magistrate.

The cases were referred to the Division Bench of this Court to consider whether offence u/s 138 of the Negotiable Instruments Act can be compounded or not. Section 320 (1) Cr.P.C. enumerates the cases which can be compounded by the persons mentioned in the 3rd column of the table without the permission of the Court. Sub-section (2) deals with cases where the compounding of offences require permission of the Court. Sub-section (9) postulates that no offence shall be compounded except as provided under the Section. As there is specific provision in the Criminal Procedure Code for compounding offences enumerated in the tables under Sections 320 (1) and (2) and as sub-section (9) makes the position crystal clear that no offence shall be compounded except as provided in the section, any offence coming under a special enactment cannot be compounded under the provisions of the Code. In a case where a special enactment provides for compounding of offences it can certainly be done, if not, it cannot be done. Section 138 of the Negotiable Instruments Act does not provide for compounding of the offence. So long as there is no specific provision for compounding of the offence u/s 138 of the Negotiable Instruments Act the offence cannot be compounded by invoking Section 320 Cr. P.C.

Counsel for the accused submitted that the inherent powers of the High Court u/s 482 of the Code can certainly be invoked in this case as the entire amount due to the complainant has been paid and as the complaint itself is no longer alive. There is no merit in the above contention as the inherent powers of the High Court cannot be resorted to for compounding of offences, particularly when there is specific provision in the Code as envisaged u/s 320 for that purpose. There cannot be any doubt that the High Court possesses inherent powers u/s 482 and it has to be exercised to do real and substantial justice. Certainly, that power cannot be exercised in an arbitrary or whimsical manner. That power can be exercised only very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice. That power cannot be exercised in a case where the amount due to the complainant has been paid subsequent to the initiation of criminal proceedings u/s 138 of the Negotiable Instruments Act. Having initiated criminal proceedings u/s 138, the offence cannot be compounded under the inherent powers of the High Court. As permission to compound the offences which are enumerated u/s 320(2) cannot be granted by the High Court in exercise of its inherent powers there cannot be any doubt that offence u/s 138 of the Negotiable Instruments Act can be compounded u/s 482 Cr. P.C.

The learned Additional Sessions Judge on a consideration of the evidence held that the trial Court''s conclusion that accused 1 and 2 have committed offence u/s 138 of the Negotiable Instruments Act cannot be interfered with. Complainant examined as P.W.1 stated that Ext.P-1 cheque issued by the accused when presented, to the Bank was dis-honoured. Complainant issued Ext. P-4 notice. Ext. P-8 was its reply. P.W. 2''s evidence shows that there was no sufficient money in the account and that was the reason why the cheque was dis-honoured. Additional Sessions Judge found no reason to interfere with the conviction and sentence entered against accused 1 and 2 by the trial court. Learned Additional Sessions Judge also held that no interference is warranted with, regard to the sentence passed by the trial court. There is no force in the contention of the complainant, that the mandatory and statutory principles enunciated u/s 138 of the Negotiable Instruments Act was not complied with.

We do not find any merit in the Criminal Revision Petitions. Criminal Revision Petitions are dismissed.