Delhi High Court – Orders
Kanchan vs Shri Vinay Kumar on 11 December, 2024
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
$~172
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 1353/2024
KANCHAN .....Petitioner
Through: Mr. Jatin Rajput and Mr. Sandeep
Kumar, Advocates
versus
SHRI VINAY KUMAR .....Respondent
Through: Appearance not given.
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
% 11.12.2024
CRL.M.A. 37244/2024 (Exemption)
Exemption allowed subject to just exceptions.
The application stands disposed of.
CRL.M.A. 37245/2024 (compounding the offence on the basis of written
settlement)
1. The instant application under Section 147 of the Negotiable
Instruments Act, 1881 (hereinafter as the “NI Act“) read with Section 359 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter as the “BNSS”)
[earlier under Section 320 of the Code of Criminal Procedure, 1973
(hereinafter as the “Code”)] has been filed on behalf of the
applicant/petitioner seeking the following reliefs:
“It is, therefore, most respectfully prayed that this Hon’ble
Court may graciously be pleased to kindly allow theThis is a digitally signed order.
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compounding of offence of Section 138 of the NI Act on the
basis of compromise between the parties.”
2. The brief facts of the case are that a complaint dated 16 th October,
2019 was filed by the respondent/complainant under Section 138 read with
Section 141/142 of the NI Act against the applicant for the dishonour of
cheque bearing no. 181764 dated 13th August, 2019 issued by the applicant
for an amount of Rs. 1,00,000/-.
3. Accordingly, the applicant was convicted for the offence punishable
under Section 138 of the NI Act vide judgment dated 28 th June, 2023 passed
by the learned Metropolitan Magistrate-01, NI Act, West, Delhi (hereinafter
as the “Magistrate”). Thereafter, vide order dated 5th July, 2023, the learned
Magistrate ordered a sentence of 3 months of simple imprisonment and a
fine of Rs. 1,32,000/- along with an interest @ 8% from the date of
institution of the said case payable to the respondent as compensation.
4. Aggrieved by the said order of conviction and sentence, the applicant
filed a criminal appeal bearing no. 259/2023 before the learned Additional
Sessions Judge-05, West District, Tis Hazari Courts, Delhi (hereinafter as
the “ASJ”). However, the said appeal was dismissed vide order dated 3 rd
September, 2024 (hereinafter as the “impugned order”), thereby, upholding
the conviction of the applicant.
5. Being aggrieved by the same, the applicant preferred the captioned
revision petition before this Court. However, while the captioned revision
petition was pending before this Court, the instant application was filed by
the petitioner for compounding of the offence punishable under Section 138
of the NI Act on the basis of the settlement arrived at between the parties
herein.
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6. Learned counsel for the applicant submitted that a settlement has been
arrived at between the complainant and the applicant through his parokar
i.e., Ms. Salminda, who is also the applicant’s daughter, vide a written
settlement agreement dated 28th October, 2024 (hereinafter as the
“Settlement Agreement”), which is annexed as Annexure D to the instant
application.
7. It is further submitted that as per the terms and conditions of the
settlement agreement, it was agreed that a total amount of Rs. 3,50,000/-
will be paid as a full and final payment to the respondent. Hence, it is
prayed that the instant application be allowed.
8. Learned counsel for the respondent submitted that the matter has been
settled between the parties and therefore, no useful purpose would be served
by keeping the proceedings in the instant matter pending. Hence, it is prayed
that the instant application be allowed, thereby, compounding the offence on
the basis of settlement arrived at between the parties.
9. Heard learned counsel for the parties and perused the record.
10. The parties herein have sought for the relief of compounding of the
offence punishable under Section 138 of the NI Act based on the settlement
agreement entered into by the parties. The said relief is being sought under
Section 147 of the NI Act read with Section 359 of BNSS, which deals with
the compounding of the offences. The said provision is reproduced as under:
“147. Offences to be compoundable.–
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), every offence punishable under
this Act shall be compoundable.”
11. The said provision merely states that the offences punishable under
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the NI Act are compoundable, as opposed to its counterpart in the Code
under Section 320 of the Code, wherein, the list of offences are specified for
compounding of the offences.
12. However, in either of the provisions, the main principle for
compounding of the offence is to procure the “consent” of the aggrieved
person. The said principle has been observed in a catena of cases, including
the case of Raj Reddy Kallem v. State of Haryana, (2024) 8 SCC 588,
wherein, the Hon’ble Supreme Court observed that the consent of the parties
is essential for compounding an offence. The relevant paragraphs of the
same are as follows:
“19. Further this Court observed in para 82 of the said
judgment that : (JIK Industries case [JIK Industries Ltd. v.
Amarlal V. Jumani, (2012) 3 SCC 255 : (2012) 2 SCC (Civ) 82
: (2012) 2 SCC (Cri) 125] , SCC p. 276)
“82. … Section 147 of the NI Act must be reasonably
construed to mean that as a result of the said section the
offences under the NI Act are made compoundable, but the
main principle of such compounding, namely, the consent of
the person aggrieved or the person injured or the
complainant cannot be wished away nor can the same be
substituted by virtue of Section 147 of the NI Act.”
*** *** ***
23. Here, we would like to point out that quashing of a case is
different from compounding. This Court in JIK Industries [JIK
Industries Ltd. v. Amarlal V. Jumani, (2012) 3 SCC 255 :
(2012) 2 SCC (Civ) 82 : (2012) 2 SCC (Cri) 125] distinguished
the quashing of case from compounding in the following words
: (SCC p. 269, para 43)
“43. Quashing of a case is different from compounding. In
quashing the court applies it but in compounding it is
primarily based on consent of the injured party.
Therefore, the two cannot be equated.”
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13. In the instant case, the parties herein i.e., the complainant and the
applicant through his parokar i.e., Ms. Salminda, have amicably settled the
matter and the complainant, who is the aggrieved, has stated that she has no
objection in compounding of such offence, thereby, giving her consent for
the same. The terms and conditions of the said settlement are as follows:
“1. That it has been agreed between the parties that the
second party shall pay the settled amount of Rs.3,50,000/- in
respect of both the above said complaint cases to the first
party.
2. That the first party has also agreed to settle both the
matters for the said sum of Rs.3,50,000/- out of which the first
party has already received Rs. 1,50,000/- in cash on 2.10.2024
and remaining amount of Rs.2,00,000/- was agreed to be paid
by the second party through his Parokar to the first party by
way of six post dated cheques the details of the said cheques
are as follows:-
All cheques drawn on H.D.FC. Bank Ltd., Plot No.K, Sector-2,
Manesar, Haryana, having IFSC Code No.HDFC0000589 in
the name of Salminda, who is daughter of second party.
3. That the compromise has arrived at between the parties
without any pressure, coercion or force from any corner but
out of their own sweet will and consent.
4. That it has been agreed between the parties that after
clearing the entire settled amount, the first party shall
withdraw the complaint case vide C.C.No.7663/2019 titled as,
“Vinay Kumar Vs. Kanchan” which is pending before the
Hon’ble Court of Ms.Surbhi Sethi, J.M.F.C. (N.I. Act), Tis
Hazari Courts, Delhi.
5. That both parties shall reach the Hon’ble High Court to
get the conviction set aside under the relevant law and shallThis is a digitally signed order.
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file joint application for this purpose. The first
party/complainant shall have no objection in setting aside the
conviction and he shall cooperate with the same. It is admitted
by first party that no undue force or coercion has been used to
taken his consent.”
14. Therefore, taking in view of the provisions of Section 147 of the NI
Act, law laid down by the Hon’ble Supreme Court as well as the terms and
conditions of the settlement agreement, the offence under Section 138 of the
NI Act stands compounded. Accordingly, the applicant is, hereby, acquitted
of the charge.
15. A communication be sent to the Jail Superintendent along with copy
of order with direction to release the petitioner forthwith if not required in
any other case.
16. Accordingly, the instant application is hereby allowed.
CRL. REV.P. 1353/2024
In view of the order passed on the even date in CRL.MA.
37245/2024, there is nothing left for any further adjudication in the instant
revision petition. Accordingly, the instant revision petition stands disposed
of. Pending applications, if any, stands dismissed.
CHANDRA DHARI SINGH, J
DECEMBER 11, 2024
gs/mk
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This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 27/12/2024 at 23:21:53