1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 241 OF 2011 IN CRIMINAL APPLICATION NO. 44 OF 2011 IN CRIMINAL REVISON APPLICATION NO. 137 OF 2009 (Vijay Damrulal Raoka .v. Cable Connectors and another) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri J.M. Gandhi, Advocate for the applicant. Shri M.J. Khan, APP for respondent No.2/State. CORAM : PRASANNA B. VARALE, J. 25TH MARCH, 2011. CRIMINAL APPLICATION NO. 241 OF 2011 Heard. Non-applicant No.1-Jeetendra Madanchand Mohta is personally present in the Court. For the reasons stated in the application, the same is allowed. Delay is condoned. CRIMINAL APPLICATION NO. 44 OF 2011 Heard. The applicant-Vijay Damrulal Raoka and non- applicant No.1-Jeetendra Madanchand Mohta are personally present in the Court. For the reasons stated in the application, the same is allowed. Criminal Revision Application No.137 of 2009 is restored to the file. CRIMINAL REVISON APPLICATION NO. 137 OF 2009 Heard. The applicant-Vijay Damrulal Raoka and non- applicant No.1-Jeetendra Madanchand Mohta are personally present in the Court. The present revision application is preferred by the 2 applicant being aggrieved by the order dated 2nd August, 2006 in Summary Criminal Case No. 2298 of 2005 passed by the learned JMFC, Special Court (under Section 138 of Negotiable Instruments Act), Nagpur and dated 13th July 2009 passed by the learned 5th Additional Sessions Judge, Nagpur, in Criminal Appeal No. 223 of 2006 whereby6 the learned Magistrate has convicted the applicant for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced him to suffer S.I. for four months and to pay the fine of Rs.65,000/-, out of which Rs.60,000/- are to be paid to the non-applicant No.1 as compensation and in default of payment of fine to suffer further imprisonment for one month and the appellate Court was pleased to maintain the said conviction of the applicant by dismissing the appeal. The cheque in question was issued out of the business transaction between the parties i.e. the applicant and non- applicant No.1. Learned Counsel for the applicant submits that the applicant and non-applicant No.1 have settled the matter amicably. He further submits that the amount involved in the matter i.e. Rs.50,000/- paid to non-applicant No.1 and the same is received by non-applicant No.1 to have the relations cordial and harmonious between them and get rid of the pending criminal case and makes a request for compounding the offence. It will be useful to refer the observations of the Apex Court in the latest judgment in Damodhar S. Prabhu .vs. Sayed Babalal H. , reported in 2010 (5) Mh.L.J. 172 , on which the learned counsel for the applicant has placed reliance. The Apex Court has observed that :- “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) at p.444] :- “A crime is essentially a wrong against the society and the State. Therefore, any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. However, where the offences are essentially of a private nature and reatively not quite serious, the 3 Code considers it expedient to recognize some of them as compoundable offences and some others as compoundable only with the permission of the Court. ...”. The Apex Court has further observed that “.... Unlike that for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeking the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque.” It is further observed that “It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect.” In view of the above, revision application is allowed. The judgment and orders passed by the learned Magistrate and the learned appellate Court are quashed and set aside. JUDGE *rrg.