BEENA Vs. BALAKRISHNAN NAIR

JUDGEMENT

(1.) Common question of law raised in these petitions is whether after the Revision Petition is finally disposed of by the High Court on merit and the final order is signed it could accept composition entered between the accused and complainant under S. 147 of the Negotiable Instruments Act (for short, "the Act").

(2.) Re vision Petitions arose from conviction and sentence of petitioners for offence punishable under S. 138 of the Act. This Court disposed of the Revision Petitions on merit as per orders dated 10.6.2009 and 6.8.2009, respectively as per which conviction of petitioners was confirmed but the sentence on them was modified as simple imprisonment till rising of the court and payment of fine as stated in the respective orders. It was also directed that fine if realized shall be given to respondent No. 1 as compensation under S.357(1)(b) of the Code of Criminal Procedure (for short, "the Code'. Now petitioners state that they have settled the case with respondent No.1 by paying the amount to respondent No.1 directly to his satisfaction. In Crl.M.A.No.4554 of 2010 petitioner prays that direction may be given to the learned Judicial First Class Magistrate, Kattakkada to accept Annexure-1 (petition to compound the offence) and pass appropriate orders thereon. In CrI.M.A.No.4435 of 2010 petitioner's prayer is to accept the composition entered between him and respondent No. 1 under S.320 of the Code read with S. 147 of the Act. Learned counsel for petitioners contend that notwithstanding that revision petitions were finally disposed of by this Court it is within the power of this court invoking S.482 of the Code and S.147 of the Act to accept composition entered between the parties and pass appropriate orders or issue appropriate direction to the learned Magistrate to accept the composition. Leaned counsel rely on the decisions of the Supreme Court in Ibrahim K.M. v. K. P. Mohammed & Anr. (2010 (1) KLT SN 70 (C.No.83) SC = 2010 (1) KHC 190) and Danwdar S. Prabhu v. Sayed Babalal H. (2010 (2) KLT 587 (SC) = 2010 (2) KHC 428). Reliance is also placed on the commentaries on Negotiable Instruments Act, 1881 by Sengupta at page No. 1280 where the author has stated that even after conclusion of all proceedings and while the drawer is undergoing sentence of imprisonment, the case (for offence under S. 138 of the Act) can be compounded and that there is no formal embargo in doing so. The author has placed reliance on the decision of a learned Single Judge of Gujarat High Court in Kripal Singh v. Balvinder (2004 Cr.L.J. 3786) where the learned Single Judge said,

(3.) I stated that Revision Petitions preferred by petitioners arising from judgment of appellate courts have been disposed of by this Court finally on the respective dates aforesaid confirming conviction but modifying the sentence to simple imprisonment till rising of the court and payment of fine as referred to in the respective orders with a rider that fine if realised shall be paid to respondent No. 1 as provided under S.357(1)(b) of the Code. The question for consideration is whether this Court having become functus officio so far as Revision Petitions are concerned could accept the composition or issue direction to the learned Magistrate to accept composition entered after disposal of the Revision Petitions. In Ibrahim K.M. v. K.P.Mohammed & Anr. (supra) on which reliance is placed by learned counsel for petitioners it was held that S. 147 of the Act has overriding effect over provisions of Code relating to compounding of offences. (emphasis supplied). Question considered in that case was whether in view of S.320(9) of the Code criminal courts could accept composition of offence under S. 138 of the Act. The Supreme Court answered the question in affirmative, that S. 147 of the Act has overriding effect over the provisions of the Code relating to composition of offences, i.e. S. 320(9) of the Code. The other decision relied on by the learned counsel is Damodar S. Prabhu v. Sayed Babalal H. (supra). That decision did not address the issue regarding composition of offence under S. 138 of the Act after the appeal or revision is disposed of by appropriate forum on merit. That decision only referred to the issue regarding composition of offence under S. 147 of the Act at various stages of the proceedings and prescribed guidelines for accepting such composition. It was also held that notwithstanding S. 320(9) of the Code, offence under S. 138 of the Act is compoundable as S. 147 starts with anon obstante clause and that provision was subsequently incorporated in the Act by an amendment. It is true that in paragraph No. 13 of Ibrahim KM. v. K.P.Mohammed & Anr. the Supreme Court observed,