Criminal Misc.-M No.36238 of 2011 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: December 01, 2011 Kirpal Singh ...Petitioner Versus Surinder Singh Jaswal ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Sandeep Arora, Advocate, for the petitioner. ***** RANJIT SINGH, J. The petitioner has filed this petition under Section 482 Cr.P.C. for quashing of the criminal complaint filed against him under Section 138 of the Negotiable Instruments Act and all subsequent and consequential proceedings arising therefrom. The plea is that the petitioner is ready and willing to pay double the amount of the cheque plus interest and costs of litigation whatever is assessed by the Court. As per the averments made in the petition, respondent had filed a complaint against the petitioner alleging that he took a friendly loan of `10,000/- from him in March, 2006 and promised to return the same within two months. The petitioner-accused, however, Criminal Misc.-M No.36238 of 2011 (O&M) : 2 : failed to make the payment within the stipulated period, but he however, issued cheque on 20.5.2006 to discharge the liability. The respondent presented this cheque for encashment, but the same was returned because of `insufficient funds'. After serving a statutory notice and when the petitioner failed to discharge the liability, the respondent filed the complaint. This complaint was filed in the year 2006. Money was allegedly paid in the year 2006. The petitioner was summoned on 17.8.2006. The trial thereafter has continued. The petitioner has allowed the case to continue for all this while. He apparently made no efforts to settle this dispute relating to ` 10,000/-, which is hardly any amount. He had all the opportunity to make the present offer during the course of trial, which, he chose not to do. The trial court on the basis of evidence has convicted the petitioner for an offence under Section 138 of the Negotiable Instruments Act and has sentenced him to suffer RI for six months coupled with fine of `1,000/-. Perhaps the gravity of the consequences has now dawned on the petitioner where he is sentenced for just not paying `10,000/-. The order of conviction and sentence is dated 9.1.2010. Against this judgment, the petitioner has filed an appeal which is pending before the Court of Sessions, Jalandhar. The petitioner states that he has deposited the fine. Should a person like the petitioner be allowed to have his one sided say in taking his chances before the court and now pray for compromise after having wasted the time and efforts of court, the prosecution etc. five years? The petitioner has made a complaint to Criminal Misc.-M No.36238 of 2011 (O&M) : 3 : struggle for five years to get back a meager amount of `10,000/-. The amount today has lost its worth and value to a considerable extent because of inflation. The complainant must have spent much more in getting this verdict. The petitioner has apparently decided to seek easy way not by praying for compounding because of the sentence staring at him. The compounding has to be if the complainant agrees to the same. The petitioner on his own cannot be permitted to urge that he be excused now or that he can buy his freedom from sentence and conviction. The petitioner has made this offer during the pendency of his appeal. He has now made an offer to pay double the amount of the cheque plus interest and costs of the litigation. The respondent has refused to accept his offer. The petitioner would describe this refusal to be without any reasonable cause or justification. While so stating, the petitioner perhaps has not appreciated his own act and conduct. He has made the system to be at his mercy for five years. He has now approached this Court to invoke inherent jurisdiction while his appeal is still pending before the Appellate Court. The petitioner now says that he is ready to settle the controversy. He has no justification to make this offer at this belated stage and has no justification for this realisation on his part to settle the dispute. The petitioner obviously is now scared of the consequences. It seems to be now the turn of the complainant to show him the rigors of law. The petitioner has to first raise his plea before the Appellate Court. When asked to take all such pleas before the Appellate Court and wait for the outcome before seeking interference by this Court, the counsel has placed before me a judgment passed Criminal Misc.-M No.36238 of 2011 (O&M) : 4 : by this court in the case of Smt.Nancy Bhakoo Versus Sh.Gulzar Singh, 2010(2) RCR (Criminal) 478 as precedent. This is also a case of dishonour of a cheque where this court found that the accused was ready to pay a sum of `1,50,000/- for `50,000/- that he had borrowed etc., which the complainant refused to accept. This court quashed the complaint on the ground that it will prevent the abuse of process of law and secure ends of justice. The question which may require consideration is whether it would be appropriate for this Court to invoke its inherent jurisdiction, once the issue is pending adjudication by way of appeal? Generally, the inherent jurisdiction is exercised when there is no alternative remedy available. Here the petitioner has an efficacious alternative remedy available which he has validly invoked. It is a remedy provided under the Statute. Once the issue is pending before the Appellate Court, it may not be always appropriate for this court to invoke the inherent jurisdiction under Section 482 Cr.P.C. Besides, this remedy is a discretionary one and it would be for the court to exercise the same depending upon the facts and circumstances of each case. Exercising this jurisdiction during pendency of appeal would tend to interfere in the jurisdiction of the Appellate Court while the appeal is being dealt with in accordance with law. The petitioner may have a remedy to invoke the revisional jurisdiction of this Court against any order that ultimately may be passed by the Appellate Court. The complainant has also got a right to be heard. If the complainant has declined to accept the offer and wants to petitioner to face the consequences of his proved criminal misconduct, then Criminal Misc.-M No.36238 of 2011 (O&M) : 5 : leaving the petitioner of the hook, cannot be termed as something which is to prevent the abuse of process of law. If there is any abuse of law, it seems to be on the part of the petitioner. In Joginder Ram Versus State of Punjab and another, 2009(1) R.C.R.(Criminal) 495, this Court has considered the aspect of invoking jurisdiction under Section 482 Cr.P.C. and had directed the petitioner to first approach the Appellate Court which is competent to grant any relief, including release of the accused on probation if the Court is convinced and allowed the petitioner to pay the amount with penalty etc. Petitioner would have legal remedy to approach this Court if any adverse order is still made against him. In this regard, reliance was placed on Ramchandra Singh Vs. State of Bihar, (2003) 10 SCC 234. The issue was also considered by the Court in Raj Kumar and others Versus State of Haryana & others (Criminal Misc.21880-M of 2008), when it is observed as under:- “What should be the approach? The appeal against the conviction of petitioner No.1 and against acquittal of petitioners No.2 to 5 are pending before the first appellate Court. Would it be legally permissible to exercise inherent powers under Section 482 Cr.P.C. to quash criminal proceedings? It may lead to a some unhealthy precedent being set which would also not sound legally in order. So far, the petitioners have made only an oral prayer before the first appellate Court, which has been orally declined. Generally, before approaching this Court for relief under Section 482 Cr.P.C. an approach to the Court before Criminal Misc.-M No.36238 of 2011 (O&M) : 6 : which the proceedings are pending with a prayer for dismissal of the proceeding should ordinarily constitute a condition precedent for entertaining an application under this Section because the grievance in regard to abuse of process must ordinarily be made before the Court where the abuse is taking place. I am accordingly of the view that the petitioners must, at the first instance, file an application before the first Appellate Court for bringing on record the compromise reached between the parties, emphasizing the fact that husband and wife are now living together. The Appellate Court has ample power to permit additional evidence at the appellate stage in exercise of powers under Section 391 Cr.P.C. and the Court would be well advised to exercise such power to take these facts and compromise on record.....” The compounding of offence can be permitted if the complainant agrees for such compounding. It is not a one way traffic as is being sought by the petitioner. The petitioner has waited far too long for the outcome of the case to materialize before seeking a way out of his problem. I do not consider it appropriate to invoke my inherent jurisdiction under Section 482 Cr.P.C. in the facts and circumstances of this case. Dismissed. December 01, 2011 ( RANJIT SINGH ) ramesh JUDGE