SUDHEER KUMAR Vs. MANAKKANDI KUNHIRAMAN

JUDGEMENT

(1.) Whether an offence under Section 138 of the Negotiable Instruments Act can be compounded after the confirmation of the conviction passed by the Magistrate Court, by the appellate court and High Court in revision Whether an order passed by the High Court in a criminal revision petition confirming the conviction can be nullified by the High Court in petition filed under Section 482 of Cr.P.C noticing subsequent compromise of the case by the contesting parties What is the effect of the non obstante clause 'notwithstanding anything contained in the Code of Criminal Procedure (Cr.P.C)' in Section 147 of the N.I. Act These are the main questions to be considered in this case. In Sabu George v. Home Secretary (2007 (1) KLT 982), it was held by the learned Single Judge of this Court that offence under Section 138 can be compounded even after confirmation of the conviction by the High Court in revision and considering the subsequent facts of compromise, necessary relief can be given in a petition under Section 482 of the Cr.P.C. by this Court. Another learned single Judge of this Court expressed doubt about the correctness of the above decision and thus referred this matter to the Division Bench.

(2.) Before answering the reference, we shall consider the facts of this case. A cheque issued by the accused for an amount of Rs. 25,000/- was dishonoured for "insufficiency of funds" and he faced charges under Section 138 of the N.I. Act. After trial, he was convicted by the Magistrate Court and sentenced to undergo simple imprisonment for one year with a fine of Rs.5,000/-. His conviction was confirmed. In appeal but sentence was modified and he was sentenced to undergo simple imprisonment for three months. In revision application, this Court by order dated 23.3.2007, confirmed the conviction but sentence was modified to imprisonment till rising of the court and to pay a compensation of Rs. 25,000/- under Section 357(3) of Cr.P.C. Thereafter this petition was filed in May 2007 under Section 482 of the Code of Criminal procedure by the accused petitioner for the following reliefs;; (1) to accept the compounding application jointly filed by the parties and (2) to return the fine amount of Rs. 5,000/- already deposited before the Magistrate Court. In the joint petition by the parties (accused and complainant) prayer is as follows:

(3.) In Sabu George's case, this Court has considered two petitions. In one case after confirmation of conviction by this Court in revision petition (Cr.R.P.No.7/2004), Crl.M.Ano.8626/2006 was filed for compounding the case. Later Crl.M.C.No.259/2007 was also filed under Section 482 of the Cr.P.C for compounding the case. In the next case after confirmation of the conviction under Section 138 of the N.I. Act, W.P(C).No.34540/2006 was filed to compound the case. Court granted following reliefs: