Without following the guidelines of the apex Court in Damodar S.Prabhu v. Sayed Babalal H.1 to compound the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (for short, 'the N.I.Act'), No case should be considered for compromise = Smt.D.Lakshmi W/o.Sri Ch.Tirumala Prasad, Occu:Bank Employee, Flat No.72, Sri Durga Estates, Medchal Road, Jeedimetla, Hyderabad. Y.V.Sarma S/o.Sri Y.S.Sarma, Occu:Employee, Block No.9, Flat No.8, Krupa Complex, Safilguda, Hyderabad & Anr. = Reported in http://judis.nic.in/judis_andhra/filename=9655

Without following the guidelines of the apex Court in Damodar
S.Prabhu v. Sayed Babalal H.1 to compound the offence punishable under Section 
138 of the Negotiable Instruments Act, 1881, (for short, 'the N.I.Act'), No case should be considered for compromise  =

whether
the guidelines issued in Damodar S.Prabhu's case (1 supra) can be made 
applicable to the complaints filed prior to the said judgment?=
I express my inability to accept the view taken by the learned single Judge of
the Jharkhand High Court in Krishna Prasad's case (2 supra).   
When once
guidelines are issued in the matter of entertaining the applications for
compounding the offence under Section 138 of the N.I.Act, they are to be made
applicable to all the cases pending in whatever stage they are.  
The Supreme
Court has given discretion to the trial Court or appellate Court to reduce the
scale of costs having regard to the specific facts and circumstances of each
case.  
In that view of the matter, I do not see any illegality or irregularity
in the order impugned in the revision case warranting interference of this Court
in exercise of power under Sections 397 and 401 Cr.P.C.

THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY          

Criminal Revision Case No.74 of 2013

11-02-2013

Smt.D.Lakshmi W/o.Sri Ch.Tirumala Prasad, Occu:Bank Employee, Flat No.72, Sri  
Durga Estates, Medchal Road, Jeedimetla, Hyderabad.

Y.V.Sarma S/o.Sri Y.S.Sarma, Occu:Employee, Block No.9, Flat No.8, Krupa  
Complex, Safilguda, Hyderabad & Anr.

COUNSEL FOR THE PETITIONER: SRI G.UDAYA BHASKAR RAO            

COUNSEL FOR THE 1ST RESPONDENT: SRI BODDIPALLI RAMESH              
COUNSEL FOR THE 2ND RESPONDENT: ADDL. PUBLIC PROSECUTOR                

<Gist:

>Head Note:

?CITATIONS:
1) (2010) 5 SCC 663
2) 2012 (1) Crimes 110 (Jhar.)
3) (1997) 6 SCC 241 = 1997 SCC (Cri.) 932

ORDER:


        This Criminal Revision Case is directed against the order, dated
22.12.2012 passed in Crl.M.P.No.753 of 2012 in Criminal Appeal No.59 of 2011 on
the file of II Additional District and Sessions Judge, Cyberabad, Ranga Reddy
District at L.B.Nagar, whereby and whereunder, the learned Additional Sessions
Judge directed the parties to follow the guidelines of the apex Court in Damodar
S.Prabhu v. Sayed Babalal H.1 to compound the offence punishable under Section 
138 of the Negotiable Instruments Act, 1881, (for short, 'the N.I.Act').
       
2.      Facts, in brief, are:-
        The petitioner is the accused and the respondent is the complainant in
C.C.No.241 of 2007 on the file of III Metropolitan Magistrate, Cyberabad,
L.B.Nagar, Ranga Reddy District.
The accused has been prosecuted for the
offence under Section 138 of the N.I. Act on the complaint filed on 02.04.2007.
The learned  III Metropolitan Magistrate, Cyberabad,
L.B.Nagar, Ranga Reddy District, on full-fledged trial, found the
petitioner/accused  guilty for the offence under Section 138 of the N.I. Act,
convicted him accordingly and sentenced him to suffer S.I for one year and pay a
fine of Rs.5,000/- in default to suffer Simple Imprisonment for a period  three
months,  by judgment, dated 29.03.2011.
The petitioner/accused assailed the
judgment of conviction and sentence passed in C.C.No.241 of 2007 by filing
Criminal Appeal No.59 of 2011 on the file of II Additional District and Sessions
Judge, Ranga Reddy District at L.B.Nagar, Hyderabad.
Pending the appeal, the
petitioner/accused and the respondent/ complainant settled their disputes.
Thereupon, the petitioner/ accused and the respondent/complainant moved 
Crl.M.P.No.753 of 2012 under Section 147 of the N.I.Act to record compromise and
set aside the conviction passed in C.C.No.241 of 2007, dated 29.03.2011.
The
learned Additional Sessions Judge directed the parties to follow the guidelines
issued by the Supreme Court in Damodar S.Prabhu's case (1 supra), in compounding
the offence under Section 138 of the N.I.Act, by an order, dated 22.12.2012.
Hence this Criminal Revision Case by the accused.

3.      Heard learned counsel appearing for the petitioner/accused and learned
counsel appearing for the 1st respondent/complainant.  

4.      It is contended by the learned counsel appearing for the
petitioner/accused that the guidelines as to payment of certain percentage of
amount to the Legal Services Authority in the event of the offence under Section
138 of N.I.Act is compounded, cannot be made applicable to the present case
since the complaint came to be instituted much prior to the issuance of the
guidelines. 
In support of his contentions, reliance has been placed on the
judgment of Jharkhand High Court  in  Krishna Prasad v. State of Jharkhand2,
wherein it has been held as hereunder:-
"       It is relevant to mention that in all the interlocutory applications the
petitioner as well as the opposite party No.2 lender are consistent that they
have resolved  the dispute and have no longer grievance  against each other
which could be possible  only by the intervention of the well wishers and the
friends.   The petitioner borrower contended that he has paid Rs.19,500/- at the
first instance to the opposite party  No.2 against the receipt on the letter pad
issued by the opposite party No.2.  Though it has not been clearly mentioned  in
the counter-affidavit that opposite party No.2 has received the entire amount on
his full and final settlement but has admitted that the dispute has been
resolved and he is not inclined to pursue the matter and at the instance of the
opposite party No.2,  the petitioner was admitted to bail during pendency  of
this criminal revision.  Facts have been reiterated in all the three
interlocutory applications that the dispute has been resolved and that the
complainant-opposite part No.2 is not inclined to pursue the matter further.
Contents of the interlocutory applications  have been supported  by the
petitioner  as well as  by the opposite party No.2 and considering the  contents
of all the petitions,  referred to hereinbefore,  as also taking into
consideration  the contents of the counter affidavit filed on behalf of the
opposite party No.2, I allow the composition of the dispute in view of the
provisions under Section 147 of the Negotiable Instruments Act, 1881,
consequently, the petitioner is  acquitted relying  upon the decision of the
Apex Court in K.M.Ibrahim v. K.P.Mohammed and another (supra) referred to 
hereinbefore."
        
5.      The point that calls for determination in this revision case is
whether
the guidelines issued in Damodar S.Prabhu's case (1 supra) can be made 
applicable to the complaints filed prior to the said judgment?

6.      The guidelines came to be issued in view of there being no procedure
prescribed as to when the offences under Section 138 of the N.I. Act can be
compounded.  For better appreciation,            I may refer paras.24 to 26 of
the cited judgment, which read as hereunder:
        "24. We are also conscious of the view that the judicial endorsement of
the above quoted guidelines could be seen as an act of judicial law-making and
therefore an intrusion into the legislative domain. It must be kept in mind that
Section 147 of the Act does not carry any guidance on how to proceed with the
compounding of offences under the Act. We have already explained that the scheme
contemplated under Section 320 Cr.P.C. cannot be followed in the strict sense.
In view of the legislative vacuum, we see no hurdle to the endorsement of some
suggestions which have been designed to discourage litigants from unduly
delaying the composition of the offence in cases involving Section 138 of the
Act.
25. The graded scheme for imposing costs is a means to encourage compounding at  
an early stage of litigation. In the status quo, valuable time of the Court is
spent on the trial of these cases and the parties are not liable to pay any
Court fee since the proceedings are governed by the Code of Criminal Procedure,
even though the impact of the offence is largely confined to the private
parties. Even though the imposition of costs by the competent court is a matter
of discretion, the scale of costs has been suggested in the interest of
uniformity. The competent Court can of course reduce the costs with regard to
the specific facts and circumstances of a case, while recording reasons in
writing for such variance. Bona fide litigants should of course contest the
proceedings to their logical end.
26. Even in the past, this Court has used its power to do complete justice under
Article 142 of the Constitution to frame guidelines in relation to subject-
matter where there was a legislative vacuum."

7.      The Supreme Court in Visakha v. State of Rajasthan3 held that
where the
executive fails to fill the gap in legislation, the judiciary must step in and
provide a solution till legislature acts.
There are ample powers conferred by
Articles 32 r/w.142 of the Constitution of India to make orders which have the
effect of law by virtue of Article 141 and there is mandate to all authorities
to act in aid of the orders of the Supreme Court as provided in Article 144 of
the Constitution of India.
The directions issued by the Supreme Court in a
decision constitute binding law under Article 141 of the Constitution of India.
When the Supreme Court decides a principle it would be the duty of the High
Court or subordinate courts to follow that decision.

8.      In interpreting the judgment of the Supreme Court in the above referred
case to make the guidelines applicable to the cases instituted subsequent to the
judgment is nothing but diluting the guidelines issued by the Supreme Court.
I express my inability to accept the view taken by the learned single Judge of
the Jharkhand High Court in Krishna Prasad's case (2 supra).   
When once
guidelines are issued in the matter of entertaining the applications for
compounding the offence under Section 138 of the N.I.Act, they are to be made
applicable to all the cases pending in whatever stage they are.  
The Supreme
Court has given discretion to the trial Court or appellate Court to reduce the
scale of costs having regard to the specific facts and circumstances of each
case.  
In that view of the matter, I do not see any illegality or irregularity
in the order impugned in the revision case warranting interference of this Court
in exercise of power under Sections 397 and 401 Cr.P.C.

9.      Accordingly, the Criminal Revision Case is dismissed at the admission
stage.
______________________  
B.SESHASAYANA REDDY, J.      
Date:11th February, 2013.

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.