HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR

Anuradha Kapoor & Ors Vs State of Maharashtra & Ors 

CORAM: ANIL L. PANSARE, JUSTICE 
Date of Reserving : 02.11.2023
Date of Pronouncement : 29.11.2023

 

Hon’ble Bombay High Court has held that trial court can allow compounding of offenses under Section 138 of the Negotiable Instruments Act without the complainant’s explicit consent, provided the accused applies for it and the complainant is adequately compensated. The applicants/original accused in Criminal Complaint filed by the non-applicant no.2-Company under Section 138 of the Negotiable Instruments Act, 1881 (in short, “NI Act”) are aggrieved by the order dated 03.11.2022 passed by the learned 2nd Additional Chief Judicial Magistrate, Nagpur (in short, ‘Magistrate’), whereby the applicants’ application seeking compounding of the offence upon full payment of cheque amount has been rejected. According to the applicants, the order suffers from non-consideration of the law laid down by the Hon’ble Supreme Court, in the case of Damodar S. Prabhu vs. Sayed Babalal : (2010) Vol.5 SCC 663 and Meters and Instruments Private Limited vs. Kanchan Mehta : (2018) Vol.1 SCC 560.

Relevant Paras:

21. The question, therefore, is whether the present case is an appropriate case where the consent of non-applicant no.2 for compounding the offence, could be ignored. The answer is as follows :
In Damodar’s case, the first guideline i.e. guideline stipulated in para (i) reads as under :
“(a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any cost on the accused.”
The guideline clearly stipulates that when writ of summons is issued, the accused is made to know that he could make an application for compounding the offence at the first or second date of hearing of the case and that if such an application is made, the compounding may be allowed by the Court without imposing any costs on the accused. Thus, the accused is made to believe that if he files an application for compounding offence at the initial stage of the case, the compounding will not only be allowed but will be allowed without imposing costs. The question, therefore is, if the accused in response to the writ of summons files application for compounding offence, can the Court or will it be appropriate for the Court to reject the application on the ground of absence of consent of the complainant, particularly when the accused is not put to notice that compounding will be allowed only if thecomplainant extends his consent. To my mind, in normal circumstances, when the application for compounding offences u/s 138 of the NI Act is made at the initial stage of the case and if the complainant is duly compensated, the trial Court will be fully justified in compounding the offence without consent of the complainant.
22. The purpose behind the intimation to the accused that he could make an application for compounding is to encourage settlement, considering the nature of dispute u/s 138 of the N.I. Act. Para Nos. 12 and 13 in Damodar’s case on this aspect, is relevant which read thus:
“12. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary (Cited from: K.N.C. Pillai R.V. Kelkar’s Criminal Procedure, 5th edn. (Lucknow :Eastern Book Company ,2008)

. Similarly, in the case of Vijay Kumar Gupta vs. State Government of NCT Delhi in Criminal Misc. No.2289/2013 dated 09.03.2017, the High Court of Delhi in paragraph no.7 has observed thus:-

“7. Looking into the facts and circumstances of the case and the fact that the petitioners have paid the loan/ settlement amount to the Respondent No.2 and nothing remains to be adjudicated further, to remove the hurdle in the personal life of the present petitioners for leading better and peaceful life and to meet the ends of justice, I deem it appropriate to quash the FIR No. 1087/2003, under Section 406, 420, 468, 471 of the Indian Penal Code, 1860 registered at Police Station Parliament Street, Delhi qua against the petitioners, namely Vijay Kumar Gupta, Rajkumar Sharma and Vinod Choudhary only to the extent of their role in commission of the alleged offence.” applicant/respondent no.2 has opposed piecemeal compromise by contending that such compounding is an exception and may be permissible where the complainant has given consent to the compromise and not otherwise. He submits that in Gaganpal Singh Ahuja’s case (supra) piecemeal compounding was recognised because the complainant has given consent to compounding the offence. However, in the present case, the complainant has not given such consent and, therefore, the said judgment will not be applicable to the facts of the present case. As regards Vijay Kumar’s case (supra), the learned Senior Counsel submits Mr. Anand Jaiswal, the learned Senior Counsel for the non-that the judgment relates to quashing of first information report and not compounding of offence.

36. To my mind, the ratio decidendi in the above cases is that in appropriate cases, a piecemeal compromise and compounding is permissible. The non-applicant is getting adequate compensation. In the circumstances, having given my thoughtful consideration to the attending circumstances, the request to compound the offence will have to be allowed.

37. The present case appears to me to be a fit case where powers under Section 482 of the Code must be exercised, considering the peculiar facts and circumstances of the case. Hence, following order is passed:-

ORDER
i) The Criminal Application No.566/2023 is allowed.
ii) The impugned order dated 03.11.2022 passed by learned ACMM
in SCC No. 6061/2018 is set aside. Offence punishable under Section 138 of the NI Act against the applicants stands compounded, subject to applicants depositing in the trial Court, by way of demand draft, an amount of Rs. 15,00,000/- (Rupees fifteen lakhs) along with interest at the rate of 9% from 23rd December, 2017 to 11th December, 2018 as also Rs. 25,000/- towards cost of litigation within fifteen working days from the date of this judgment, which amount the non-applicant no.2 shall be entitled to withdraw.
iii) The applicants shall stand discharged on the day the aforesaid demand draft is deposited in the trial Court.
iv) No cost is payable to the District Legal Services Authority for the reason that the application for compounding offence has been filed at the initial stage.

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Anuradha Kapoor & Ors vs State Of Maharashtra

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