Please Log in / Register to access the full text of this judgment and the entire database
(2023) Law Today Live Doc. Id. 18110
Decided on: 04.05.2023
Appearance:
Mr. Darshan A. Dave(7921) for the Applicant(s) No. 1
for the Respondent(s) No. 2
Ms Maithili Mehta, APP for the Respondent(s) No. 1
Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 147 – Code of Criminal Procedure, 1973 (2 of 1974), Section 320(1) -- Compounding after conviction u/s 138 of NI Act -- Total cheque amount received by the complainant and the complainant has given consent for compounding the offence -- Keeping in mind the object of Section 147 of the NI Act, which is an enabling provision which provides for compounding the offence inserted by way of amendment towards special law, would give overriding effect to sub-section (1) of Section 320 of Cr.PC, matter considered as compounded -- Judgment and order of conviction and sentence quashed and set aside.
(Para 4-6)
ORDER
GITA GOPI, J. –
1. Learned advocate Mr. Hardik Raval has instructions to appear on behalf of the respondent No. 2 – Bank. He shall file his Vakalatnama forthwith, if yet filed.
2. Challenge in this revision application at the instance of the applicant – accused is given to the concurrent findings of the learned Courts below of conviction and sentence for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).
3. Rule. Learned advocates for the respective respondents waive service.
4. Learned advocate Mr. Darshan Dave for the applicant states that total cheque amount has been paid to the complainant Bank and the complainant Bank has issued No Any Loan Due certificate. Learned advocate Mr. Raval for the respondent No. 2 – Bank stated that the Branch Manager of the respondent No. 2 – Bank is present before the Court along with an Affidavit and has affirmed the fact that dispute has been resolved and above Certificate is issued on 28.04.2023 and that, they are not desirous of proceeding further in the matter. The affidavit is taken on record.
5. Since, the total cheque amount has been received by the complainant and the complainant has given consent for compounding the offence, keeping in mind the object of Section 147 of the NI Act, which is an enabling provision which provides for compounding the offence and may require the consent of the aggrieved for compounding the offence, however, the specific provision under Section 147, inserted by way of amendment towards special law, would give overriding effect to sub-section (1) of Section 320 Criminal Procedure Code, 1973 (CrPC) as has been observed in the case of Damodar S. Prabhu v. Sayed Baba Lal, AIR 2010 SC 1907 = (2010) Law Today Live Doc. Id. 15231. Accordingly, as the dispute has been resolved and the total cheque amount has been paid to the complainant, in consonance with the object of the NI Act and the provisions under Section 147 thereof, the matter is considered as compounded.
6. In aforesaid view of the matter, the judgment and order passed by the learned trial Court of conviction and sentence for the offence punishable under Section 138 of the NI Act, as affirmed by the learned appellate Court, are quashed and set aside. The applicant stands acquitted. The present revision application is allowed in the above terms. Rule is made absolute accordingly.
6.1 Direct service is permitted.
Revision application allowed.
********