Rajkumar @APPELLANT@Hash State of Rajasthan & Ors.

Accused-petitioner has preferred this revision petition under Section 397/401 Cr.P.C. to challenge judgment dated 15.12.2011, passed by Additional

Sessions Judge, Sumerpur, District Pali (for short, ‘learned appellate Court’), whereby learned appellate Court has confirmed judgment dated

13.05.2009, rendered by Judicial Magistrate, Sumerpur, District Pali (for short, ‘learned trial Court’). The learned trial Court, by its verdict dated

13.05.2009, indicted accused-petitioner for offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘Act’) and handed

down sentence of one year’s simple imprisonment. Besides imprisonment, the learned trial Court has also ordered that accused-petitioner should

pay compensation to the complainant to the tune to Rs.46,000/-. Being aggrieved by the same, petitioner approached learned appellate Court but

that effort did not fructify to his advantage as the learned appellate Court dismissed the appeal. This sort of situation has necessitated filing of this

revision petition.

 Learned counsel for the petitioner submits that now rival parties have sorted out their dispute and compromise has been arrived at. With this

positive assertion, learned counsel has urged that both the impugned judgments be annulled and sentence handed down by learned trial Court and

confirmed by learned appellate Court be set aside. Learned counsel has relied on a decision of Supreme Court in Damodar S. Prabhu Vs. Sayed

Babalal H. [(2010) 5 SCC 663].

Learned counsel for the complainant, while acknowledging the compromise arrived at between the parties, would urge that looking to the nature of

offence and in the wake of settlement of dispute between rival parties, the conviction recorded by learned trial Court and upheld by the learned

appellate Court merits annulment.

I have heard learned counsel for the accused-petitioner and learned counsel for the complainant and perused the materials available on record.

Chapter XVII of the Act deals with penalties in case of dishonor of cheques for insufficiency of funds in the accounts. A complete procedure in

this behalf is provided under Section 138 to

147 of the Act. Section 142 deals with cognizance of offence and Section 143 empowers a Court to try cases under Section 138 of the Act

summarily. As per Section 147 of the Act, every offence punishable under the Act is compoundable notwithstanding anything contained in the

Cr.P.C. While it is true that the offence is compoundable but a pivotal question, which has emerged for consideration, is whether revisional powers

can be exercised by this Court to compound the offence under Section 138 of the Act after conviction of the petitioner by appellate Court.

 In Damodar S. Prabhu (supra), Supreme Court has examined the provisions of Section 138 and 147 of the Act threadbare and observed that

compensatory aspect of the remedy should be given priority over the punitive aspect. The Court observed that Section 147 of the Act, being an

enabling provision, it can serve as exception to the general rule incorporated in subsec.(9) of Section 320 Cr.P.C. The Court, while laying emphasis

on non-abstante clause under the aforesaid Section, further held that Section 147 inserted by way of amendment to special law will override the effect

of Section 320(9) Cr.P.C. The Court approved compounding of offences at a later stage of litigation in cheque bouncing cases. Finally, the Court

framed certain guidelines for a graded scheme of imposing costs on parties, who unduly delay compounding of the offences and proposed certain

percentage of cheque amount to be deposited with Legal Services Authority.

At this stage, it would be just and appropriate to take note of the fact that the petitioner has surrendered before the learned trial Court. It is also

relevant that both the parties have entered into compromise and same has been verified by the Deputy Registrar (Judl.) in presence of counsels

appearing for the rival parties, in pursuance of direction issued by this Court on 02.05.2018. The complete text of compromise, in vernacular, reads

as under:Â

“&%vkilh jkthukek fy[kr%&

;g vkilh jkthukek fy[kr vkt jkst fuEu i{kdkjkuksa ds chp esa fy[k fn;k tkrk gS fd izFke i{kdkj ca’khyky iq= dY;k.keyth vk;q 75 o""kZ] tkfr vxzoky]

fuoklh lqesjiqj] rglhy lqesjiqj] ftyk ikyh ¼jkt-½ vkxs cgd vki f}rh; i{kdkj jktdqekj iq= cuspanth vk;q 43 o""kZ] tkfr tSu] fuoklh lqesjiqj] rglhy lqesjiqj]

ftyk ikyh ¼jkt-½ ds i{k nsrk gWw fd izFke i{kdkj }kjk ,d eqdnek ¼ifjokn½ uEcj 917@2003 /kkjk 138 ,u vkbZ ,DV esa f}rh; i{kdkj jktdqekj ds

fo:) ntZ djok;k Fkk tks ekuuh; U;kf;d eftLVªsV lkgc lqesjiqj U;k;ky;  }kjk QSly fd;k tk pqdk gS] ftldh vihy ekuuh; vij ftyk ,oa ls’ku U;k;ky;

lqesjiqj esa QSly dh tk pqdh gS] rFkk nksuksa i{kdkjku dh vkilh letkbZ’k ls jkthukek gks x;k gSA ftlesa izFke i{kdkj ds lEiw.kZ fglkc ds :i;s dk ysu

nsu iqjk gks x;k gS o izFke i{kdkj us ifjokn esa of.kZr laiw.kZ pSd jkf’k izkIr dj fy;s gSA vc izFke i{kdkj dk f}rh; i{kdkj ls dksbZ ysuk nsuk 'ks""k

ugha jgk gSA u gh izFke i{kdkj f}rh; i{kdkj ds fo:) dkuwuh dk;Zokgh ugha djuk pkgrk gSA

& fygktk mDr jkthukek izFke i{kdkj us fcuk fdlh ncko ds o LoLFkfpr ,oa fLFkj cqf) ls fcuk fdlh u’ks iRrs ds lksp le> dj] gksâ€k gokl ,oa rUnq:Lrh

gkyr esa vki f}rh; i{kdkj ds i{k esa fy[k fn;k gSa tks lgh lun jgsa o oDr t:jr ij dke vkosaA

bfr fnukad %& 23-03-2018**

Applying the ratio decidendi of Damodar S.Prabhu (supra) and the guidelines framed therein, on the strength of compromise arrived at between

petitioner and the complainant, I feel persuaded to exercise revisional jurisdiction for doing real and substantial justice in the matter for the

administration of which alone the Courts exist.

Accordingly, I prefer to give priority to the compensatory aspect of remedy over the punitive aspect in the matter in the wake of settlement of dispute

and compromise being arrived at between the rival parties.   Â

 In view of foregoing discussion, the instant revision petition is allowed, impugned judgment dated 15.12.2011 passed by learned appellate Court as

well as judgment dated 13.05.2009 passed by the learned trial Court are set at naught as a consequence of compromise having been arrived at

between the rival parties and while acknowledging their compromise offence under Sec. 138 of the Act is hereby compounded by resorting to Section

147 of the Act. Compounding of offence under Section 138 of the Act, obviously, entails acquittal of the petitioner.

 However, taking into account the fact that petitioner has caused undue delay in making endeavour for compounding of offence, in terms of

guidelines framed by the Supreme Court in Damodar S. Prabhu (supra), accused-petitioner is ordered to be released, if not required in any other case,

subject to the condition that he deposits 10% of the cheque amount, i.e., Rs.2,300/- with the District Legal Services Authority, Sumerpur District Pali.