1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPR) No. 18 of 2011 in Criminal Revision Application No. 177 of 2006. Vinod Arjundas Jethwani ..VERSUS.. Balbirsingh Chandsingh Beli and another Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S. N. Bhiwapurkar, Advocate for the applicant Mr. S. H. Shahid, Advocate h/f Mr. R. S. Akbani, Advocate for respondent no.1 Mr. M.J. Khan, A.P.P. For Respondent/State. CORAM : Prasanna B. Varale, J. DATED : 28 th March , 2011 . Heard. By the present application, the applicant is seeking compounding of the prosecution in view of the judgment of the Apex Court in the case of Damodhar S. Prabhu .vs. Sayed Babalal H., reported in 2010 (5) Mh.L.J. 172. The present Criminal Revision Application No. 177/2006 was filed by the applicant challenging the judgment and order dated 14/11/2005, passed by the learned Judicial Magistrate, First Class and Special Court of 138 Cases, Nagpur, in Summary Criminal Complaint Case No. 1570/2005 whereby the applicant/original accused was convicted for the offence punishable under Section 138 of Negotiable Instruments Act and the same was confirmed by the learned District and Sessions Judge, Nagpur by the judgment and order dated 07/7/2006 in Criminal Appeal No. 133/2005. The learned Advocate for the applicant submits that the dispute between the parties arose out of business transaction. He 2 further submits that the parties, with a view to keep the business relations between them cordial, have decided to settle the dispute and get rid of the pending criminal case, It will be useful to refer the observations of the Apex Court in the latest judgment in Damodar Prabhu's case, on which the learned counsel for the applicant has placed reliance. The Apex Court has observed that - “3. …........ It is quite evident that the legislative intent was to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a 'fine which may extend to twice the amount of the cheque' serves a compensatory purpose. What must be remembered is that the dishonour of a cheque can be best described as a regulatory offence that has been created to serve the public interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the private parties involved in commercial transaction.” The Apex Court dealing with the aspect of compounding of the offence, further 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 Code considers it expedient to recognize some of them as compoundable offences and some others as compoundable only with the permission of the Court. ...”. 3 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.” The Apex Court has set certain guidelines and useful reference can be made to clause (c) of the guidelines. "(a) ........... (b) .......... (c) Similarly, if the application for for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs." It is further observed that "Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority." 4 In view of the judgment of the Apex Court, I am of the opinion that a case is made out by the applicant for compounding of the offence. In the result, the application is allowed. The applicant is directed to pay Rs.40,000/- i.e. the amount of cheque to respondent no.1 and pay an amount of Rs.6,000/- i.e. 15% of the cheque amount to the High Court Legal Services Sub- Committee, Nagpur, as costs. Time of three weeks from today is granted to the applicant to pay the amount of Rs.40,000/- to respondent no.1 and deposit the amount of Rs.6,000/- in the High Court Legal Services Sub-Committee, Nagpur. The judgment and order of conviction and to suffer sentence of simple imprisonment for one month, passed by the learned Judicial Magistrate, First Class and Special Court of 138 Cases, Nagpur, dated 14/11/2005 in Summary Criminal Complaint Case No. 1570/2005 and confirmed by the judgment and order, passed by the learned District and Sessions Judge, Nagpur, dated 07/7/2006 in Criminal Appeal No. 133/2005, is hereby quashed and set aside. Criminal Application (APPR) No. 18/2011 is disposed of in above terms. Criminal Revision Application No. 177 of 2006. Heard. In view of the order passed on Criminal Application (APPR) No.18/2011, no order is necessary to be passed on this application. Resultantly, Criminal Revision Application No. 177/2006 is disposed of. JUDGE Diwale