Phool Chand Saraogi vs State of Rajasthan and Another

G.S. Sarraf, J.—This criminal misc. petition u/s 482, Cr. P.C. is directed against the order dated 14-8-2007 (wrongly mentioned as 14-8-2006) passed by Additional Chief Judicial Magistrate No. 8, Jaipur City, Jaipur in criminal case No. 339/2006 whereby the application filed by the petitioner u/s 147 of the Negotiable Instruments Act (hereinafter referred to as the ''Act'') has been dismissed.

In the criminal complaint filed by the respondent No. 2 it is alleged that the petitioner issued a cheque bearing number 764959 dated 29-11-2004 for Rs. 74.82,684/- in favour of the respondent No. 2, drawn on The Bank of Rajasthan Ltd. Madrampura Branch which came to be dishonoured on account of insufficient funds in the bank account of the petitioner. The cheque in question is alleged to have been issued by the petitioner for repayment of the loan taken by him from the respondent No. 2. The complaint is pending trial in the Court of Additional Chief Judicial Magistrate No. 8, Jaipur City, Jaipur. The petitioner filed an application in the trial Court u/s 147 of the Act stating therein that with respect to the cheque in question he has already deposited Rs. 20,79,262/- in the competent Court in compliance of the order passed by High Court in first appeal filed by the petitioner against a judgment and decree of a Civil Court and the remaining amount as per the above order will also be paid by the petitioner in near future and, therefore, the offence u/s 138 of the Act stands compounded and the complaint filed by the respondent No. 2 deserves to be dismissed. The trial Court by the impugned order has dismissed this application. Aggrieved the petitioner has filed this misc. petition.

Heard learned Counsel for the petitioner and learned Counsel for the respondent No. 2.

Learned Counsel for the petitioner has contended that when the petitioner has already ventured to make payment of the amount in question the offence u/s 138 of the Act virtually stands compounded u/s 147 of the Act and if the case is allowed to continue then it will be sheer exercise in futility. He has contended that Section 147 of the Act lays down a mandate for compounding of the offence and the word "shall" has been used in it and, therefore, in the circumstances of the present case the proceedings in the criminal complaint deserve to be quashed. He has placed reliance on Mrs. Shakuntala Sawhney Vs. Mrs. Kaushalya Sawhney and Others, [1979]3SCR639 and Manipur Administration Vs. Thokchom, Bira Singh,

There is no doubt that the offence u/s 138 of the Act is compound-able u/s 147 of the Act. However, a compromise requires an agreement between the litigating parties and if one party is not agreeable then there can be no compromise. In the present case the complainant respondent No. 2 is not willing and ready to compromise and, therefore, in such situation it cannot be said that the matter stands compounded. If the complainant is not agreeable to the compromise then the proceedings cannot be quashed on the ground of payment or deposit of the amount in the Court. Once an offence is committed u/s 138 of the Act any payment made subsequently thereto will not absolve the accused of the criminal offence though in the matter of awarding of sentence it may have some effect on the Court trying the offence. Therefore, I do not find any merit in .the contention raised by learned Counsel for the petitioner. I am supported by Rajneesh Aggarwal Vs. Amit J. Bhalla,

Having regard to the above discussion, I am clearly of the opinion that the impugned order does not suffer from any illegality or impropriety which may warrant interference by this Court to prevent abuse of the process of the Court.

Consequently, the petition fails and it stands dismissed accordingly.