PRAVEEN MEHTA Vs. MANJU KHARIWAL

JUDGEMENT

(1.) THE present misc. petition has been filed by the petitioner being aggrieved by the order dt. 20.01.2011 passed by the learned Sessions Judge, Jodhpur in Criminal Revision No. 231/2010 affirming the order dt. 17.06.2010 passed by the learned Judicial Magistrate No. 1, (N.I.Act Cases), Jodhpur, whereby, the application filed by the petitioner accused for compounding the case was rejected. Learned counsel submits that during the pendency of the trial, the accused as per the directions and guidelines issued by the Hon'ble Apex Court in the case of Damodar S.Prabhu vs. Saiyed Babalal H., reported in : AIR. 2010 SC 1907 submitted an application before the trial Court under Sec. 147 of the N.I.Act and also offered to pay the cheque amount plus ten percent of the cheque amount to be deposited with the Legal Services Authority for the purpose of compounding of the offence, but the learned trial judge has illegally rejected the said application and the revision filed against such rejection has also been dismissed as per his submission without any justification.

(2.) LEARNED counsel submits that the orders of the Courts below are absolutely illegal and have been passed in total disregard of the directions and guidelines issued in the case of Damodar S. Prabhu (supra). Thus, he submits that the orders of the learned Courts below be set aside and the learned Magistrate be directed to compound the matter and pass order of acquittal.

(3.) IN the opinion of this Court, it is true that the Hon'ble Apex Court has laid down guidelines in the case of Damodar S. Prabhu (supra) in relation to the manner in which the compromise applications in N.I.Act matter have to be dealt with but nowhere in the said judgment, it has been mentioned that even if the application for compromise is contested, then too, the Court is under an obligation to compound the offence. The Hon'ble Apex Court has held that the provision of Section 320 (9) Cr. P.C. is not applicable to the procedure for compounding the offence under Sec. 138 of the N.I. Act. But the other provisions mentioned in the said provision have not been excluded from applicability. In the opinion of this Court, unless and until the person aggrieved of the offence agrees to application for compounding the Court is not under an obligation to accept the same as has been mentioned in the orders impugned. The complainant in this case was not agreeable to the application for compounding the offence filed by the accused for offence under Sec. 138 of the N.I. Act.