# Hari Om Revisionist v. State of U.P. & Anr

- **Citation:** (2022) 3 ILRA 216
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-11
- **Case number:** Criminal Revision No. 2223 of 2016
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-om-revisionist-v-state-of-u-p-anr-48179
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section
397/401
-
Negotiable Instrument Act-Sections 138 &
147-cheque dishonour-insufficient fundsnotice sent-failure to repay-complaintconviction-appeal
against
convictionappellate court confirmed the convictionrevision-mediation between the parties
becomes successful-Even though parties
have arrived at settlement after the
appellate court upheld the conviction, yet
keeping in view the spirit of seciton 147 of
the NI Act, offence u/s 138 can be
compounded-Section 147 of the Act starts
with non-obstante clause and is an
affirmative enactment and as such has an
overriding effect on Section 320 CrPC-An
offence of dishonour of cheque is the
compensatory aspect of the remedy which
should be given priority over punitive
aspect-order
of
conviction
is
set
aside.(Para 1 to 22)

B. With regard to the progression of
litigation in cheque bouncing cases, the
Learned Attorney General has urged to
frame guidelines for a graded scheme of
imposing costs on parties who unduly
delay compounding of the offence.It was
submitted tht the requirement of deposit
of the costs will act as a deterrant for
delayed composition,since at present, free
and easy compounding of offences at any
stage, however belated, gives an incentive
to the drawer of the cheque to delay
settling the cases for years. At the stage
of first or second hearing compounding
may be allowed without imposing any
costs, at the subsequent stage, the
accused will pay 10% of the cheque
amount, Similarly before Session Court or
High Court, accused pays 15% of the
cheque amount and finally before the
Supreme court, the figure would increase
to 20% of the cheque amount. (Para 10)

The revision is allowed. (E-6)

List of Cases cited:

## Text

216 INDIAN LAW REPORTS ALLAHABAD SERIES
Juvenile Justice Board, Prayagraj subject to
the following conditions:

(i) That the natural guardian/father,
Nand Lal of the revisionist will furnish an
undertaking that upon release on bail the
juvenile will not be permitted to come into
contact or association with any known
criminal or allowed to be exposed to any
moral, physical or psychological danger and
further that the natural guardian will ensure
that the juvenile will not repeat the offence.

(ii) The revisionist and his father
Nand Lal will report to the District Probation
Officer on the first Wednesday of every
calendar month commencing with the first
Wednesday of April, 2022 and if during any
calendar month the first Wednesday falls on a
holiday, then on the next following working
day.

(iii) The District Probation Officer
will keep strict vigil on the activities of the
revisionist and regularly draw up his social
investigation report that would be submitted
to the Juvenile Justice Board concerned on
such periodical basis as the Juvenile Justice
Board may determine.

(iv) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or the certified copy issued by the
Registry of the High Court, Allahabad.

(v) The computer generated copy
of such order shall be self attested by the
counsel of the party concerned.

(vi)
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of the
order from the official website of High Court
Allahabad and shall make a declaration of
such verification in writing.

31. However, considering the peculiar
facts and circumstances of the case, the court
below is directed to make every possible
endeavour to conclude the trial of the
aforesaid case within a period of four months
from today without granting unnecessary
adjournments to either of the parties.

Hon'ble Shamim Ahmed,J.

(In Re : Criminal Misc. Correction
Application No. 9 of 2022)

1. Heard Shri Hari Krishna Singh, the
learned counsel for the revisionist, the learned
A.G.A. for the State and perused the record.

2. This application has been filed on
behalf of revisionist seeking correction in the
order dated 21.02.2022 passed by this Court.

3. The correction application is allowed.

4. In the third line of second paragraph
on the first page of the order dated
21.02.2022 the word, 'nor any' be readover
as 'although' and after the word, 'counter
affidavit has been filed', the word, 'by Shri
Vinod Kumar Pandey, Advocate' be
readover.
----------

(2022)03ILR A216
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Revision No. 2223 of 2016

Hari Om ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Surendra Kumar Tripathi, Sri Arvind
Kumar Dixit
3 All. Hari Om Vs. State of U.P. & Anr.
217
Counsel for the Opposite Parties:
G.A., Sri Brij Bihari Yadav

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section
397/401
-
Negotiable Instrument Act-Sections 138 &
147-cheque dishonour-insufficient fundsnotice sent-failure to repay-complaintconviction-appeal
against
convictionappellate court confirmed the convictionrevision-mediation between the parties
becomes successful-Even though parties
have arrived at settlement after the
appellate court upheld the conviction, yet
keeping in view the spirit of seciton 147 of
the NI Act, offence u/s 138 can be
compounded-Section 147 of the Act starts
with non-obstante clause and is an
affirmative enactment and as such has an
overriding effect on Section 320 CrPC-An
offence of dishonour of cheque is the
compensatory aspect of the remedy which
should be given priority over punitive
aspect-order
of
conviction
is
set
aside.(Para 1 to 22)

B. With regard to the progression of
litigation in cheque bouncing cases, the
Learned Attorney General has urged to
frame guidelines for a graded scheme of
imposing costs on parties who unduly
delay compounding of the offence.It was
submitted tht the requirement of deposit
of the costs will act as a deterrant for
delayed composition,since at present, free
and easy compounding of offences at any
stage, however belated, gives an incentive
to the drawer of the cheque to delay
settling the cases for years. At the stage
of first or second hearing compounding
may be allowed without imposing any
costs, at the subsequent stage, the
accused will pay 10% of the cheque
amount, Similarly before Session Court or
High Court, accused pays 15% of the
cheque amount and finally before the
Supreme court, the figure would increase
to 20% of the cheque amount. (Para 10)

The revision is allowed. (E-6)

List of Cases cited:
1. Damodar S. Prabhu Vs Sayed Babalal
H.(2010) 5 SCC 663

2. Rajendra Vs Nand Lal CRLA No.s 1214-1215
of 2019(arising out of SLP No. 2990-2991/2019)

3. K.M. Ibrahim Vs K.P. Mohammed (2010) 1
SCC 798

4. Meters & Instruments P.Ltd. Vs Kanchan
Mehta (2018) 1 SCC 560

5. Vinay Devanna Nayak Vs Ryot Seva Sahkari
Bank Ltd.(2008) 2 SCC 305

6. Municipal Corp.,Indore Vs Ratnaprabha
(1976) 4 SCC 622
(Delivered by Hon'ble Samit Gopal, J.)

1. Matter taken up in the revised list.
No one appears on behalf of the revisionist
to press this revision. Sri Brij Bihari Yadav,
learned counsel for the opposite party no.2
is also not present.

2. Sri Sanjay Kumar Singh, learned
State counsel is present.

3. This revision is of year 2016. This
Court, therefore, deems it fit to proceed in
the matter on the basis of the record with
the assistance of the learned State counsel.

4. The present criminal revision under
Section 397/401 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as
"Cr.P.C.") has been filed before this Court
with the following prayers:

"It is, therefore, most respectfully
prayed that this Hon'ble Court may be
pleased to allow the present revision and
set-aside the judgment and order dated
23.7.2016 passed by Sri Prabhakar Rao,
H.J.S., Additional Sessions Judge, Court
No.12, Agra in Criminal Appeal No.74 of
218 INDIAN LAW REPORTS ALLAHABAD SERIES
2012 (Hari Om Vs. Hari Shankar Yadav)
arising out of judgment and order dated
24.2.2012 passed by Sri Ishtiyak Ali,
A.C.J.M, Court No.7, Agra in Complaint
Case no.1371 of 2011 (Hari Shankar Yadav
Vs. Hari Om), u/s 138 N.I. Act, P.S.
Tajganj, District Agra and acquit the
accused revisionist throughout in the
interest of justice.

It is further prayed that this
Hon'ble Court may kindly be pleased to
enlarge
the
revisionist
on
bail
and
realisation of fine may also be stayed
during the pendency of this revision before
this Hon'ble Court.

And/or be pleased to pass such
other and further order which this Hon'ble
Court may deem fit and proper in the facts
and circumstances of the case."

5. A complaint dated 21.09.2010 was
filed by the opposite party no.2 against the
revisionist with the allegation that he had
given
a
cheque
no.129112
dated
10.07.2010 for Rs.35,000/- to him which
was returned unpaid with the endorsement
"funds insufficient" by the Bank after
which a notice dated 26.08.2010 asking for
payment of the same was sent and on
failure to repay, the said complaint was
filed. In the said matter, the trial court
convicted the revisionist vide its judgment
and order dated 24.02.2012 under Section
138 Negotiable Instrument Act to one year
rigorous imprisonment and a fine of
Rs.10,000/-. In the event of non-deposit of
fine, six months simple imprisonment was
imposed on the accused.

6. Being aggrieved with the judgment
and order of conviction, the accused
preferred Criminal Appeal No.74 of 2012
which was decided vide judgment and
order
dated
23.07.2016
passed
by
Additional Sessions Judge, Court No.12,
Agra by which the judgment and order
dated 24.02.2012 of the trial court was
affirmed. Subsequently the present revision
has been filed before this Court with the
prayers as quoted above.

7. The matter was referred to the
Mediation Centre of this Court vide order
dated 16.8.2016 for making an effort
between the parties for settling their
disputes amicably.

8. As per the office report dated
10.03.2022, a report from the Mediation
Centre of this Court is on record which
states that mediation between the parties is
successful.

9. From perusal of the report of
Mediation Centre of this Court, it appears
that in pursuance of the said order the
mediation proceedings were taken up
which
ended
in
a
settlement
dated
20.1.2017 between the parties and the
Mediation succeeded. The parties have
settled their grievances and even the
dispute arising out in the present matter.

10. The question that arises for
consideration is as to whether at this stage
of the proceedings when the revisionist has
already been convicted by the trial court
and his conviction has been upheld by the
Appellate Court, the offence under Section
138 of NI Act can be compounded. The
issue is no longer res integra. In Damodar
S. Prabhu v. Sayed Babalal H. : (2010) 5
SCC 663, the Apex Court while laying
down guidelines as to the levy of costs
depending upon stage of the compromise
arrived at between the parties, held that
conviction of an accused in proceedings
under Section 138 of NI Act can be set
aside even at appellate stage and the
accused can be acquitted on the basis of a
3 All. Hari Om Vs. State of U.P. & Anr.
219
compromise with the complainant. It is
held in para 21 as follows:

"21.
With
regard
to
the
progression
of
litigation
in
cheque
bouncing cases, the learned Attorney
General has urged this Court to frame
guidelines for a graded scheme of imposing
costs
on
parties
who
unduly
delay
compounding of the offence. It was
submitted that the requirement of deposit of
the costs will act as a deterrent for delayed
composition, since at present, free and easy
compounding of offences at any stage,
however belated, gives an incentive to the
drawer of the cheque to delay settling the
cases for years. An application for
compounding made after several years not
only results in the system being burdened
but the complainant is also deprived of
effective justice. In view of this submission,
we direct that the following guidelines be
followed :

THE GUIDELINES

(i) In the circumstances, it is
proposed as follows:

(a) That directions can be given
that the Writ of Summons be suitably
modified making it clear to the accused
that he could make an application for
compounding of the offences at the first
or second hearing of the case and that if
such
an
application
is
made,
compounding may be allowed by the
court without imposing any costs on the
accused.

(b) If the accused does not make
an application for compounding as
aforesaid, then if an application for
compounding
is
made
before
the
Magistrate
at
a
subsequent
stage,
compounding can be allowed subject to
the condition that the accused will be
required to pay 10% of the cheque
amount to be deposited as a condition for
compounding with the Legal Services
Authority, or such authority as the Court
deems fit.

(c) Similarly, if the application
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.

(d) Finally, if the application for
compounding is made before the Supreme
Court, the figure would increase to 20%
of the cheque amount."

11. In Rajendra v. Nand Lal
(Criminal Appeal Nos. 1214-1215 of
2019 arising out of SLP (Crl) Nos.
2990-2991/2019) decided on August 06,
2019), the Apex Court observed that in
appropriate cases costs can be waived.

12. In K.M. Ibrahim v. K.P.
Mohammed : (2010) 1 SCC 798, the Apex
Court observed that Section 147 of NI Act
does not bar the parties from compounding
an offence under Section 138 even at
appellate stage of the proceedings.

13. In the case of Meters and
Instruments Private Limited v. Kanchan
Mehta : (2018) 1 SCC 560 the Apex Court
in para 18, has been held as follows:

i) Offence under Section 138 of
the Act is primarily a civil wrong. Burden
of proof is on accused in view presumption
under Section 139 but the standard of such
proof is "preponderance of probabilities".
The same has to be normally tried
summarily as per provisions of summary
trial under the Cr.P.C. but with such
variation as may be appropriate to
proceedings under Chapter XVII of the Act.
Thus read, principle of Section 258 Cr.P.C.
220 INDIAN LAW REPORTS ALLAHABAD SERIES
will apply and the Court can close the
proceedings and discharge the accused on
satisfaction that the cheque amount with
assessed costs and interest is paid and if
there is no reason to proceed with the
punitive aspect.

(ii) The object of the provision
being primarily compensatory, punitive
element being mainly with the object of
enforcing
the
compensatory
element,
compounding at the initial stage has to be
encouraged but is not debarred at later
stage subject to appropriate compensation
as may be found acceptable to the parties
or the Court.

(iii)
Though
compounding
requires consent of both parties, even in
absence of such consent, the Court, in the
interests of justice, on being satisfied that
the
complainant
has
been
duly
compensated, can in its discretion close the
proceedings and discharge the accused.

(iv) Procedure for trial of cases
under Chapter XVII of the Act has normally
to be summary. The discretion of the
Magistrate under second proviso to Section
143, to hold that it was undesirable to try
the case summarily as sentence of more
than one year may have to be passed, is to
be exercised after considering the further
fact that apart from the sentence of
imprisonment, the Court has jurisdiction
under Section 357(3) Cr.P.C. to award
suitable
compensation
with
default
sentence under Section 64 IPC and with
further powers of recovery under Section
431 Cr.P.C. With this approach, prison
sentence of more than one year may not be
required in all cases.

(v)
Since
evidence
of
the
complaint can be given on affidavit, subject
to the Court summoning the person giving
affidavit and examining him and the bank's
slip being prima facie evidence of the
dishonor of cheque, it is unnecessary for
the Magistrate to record any further
preliminary
evidence.
Such
affidavit
evidence can be read as evidence at all
stages of trial or other proceedings. The
manner of examination of the person giving
affidavit can be as per Section 264 Cr.P.C.
The scheme is to follow summary procedure
except where exercise of power under
second proviso to Section 143 becomes
necessary, where sentence of one year may
have to be awarded and compensation
under
Section
357(3)
is
considered
inadequate, having regard to the amount of
the cheque, the financial capacity and the
conduct of the accused or any other
circumstances.

14. In the case of Vinay Devanna
Nayak v. Ryot Seva Sahkari Bank
Limited : (2008) 2 SCC 305 the Apex
Court has held as under:

"18. Taking into consideration
even the said provision (Section 147) and
the primary object underlying Section 138,
in our judgment, there is no reason to
refuse compromise between the parties. We,
therefore, dispose of the appeal on the basis
of the settlement arrived at between the
appellant and the respondent.

19. For the foregoing reasons the
appeal deserves to be allowed and is
accordingly allowed by holding that since
the matter has been compromised between
the parties and the amount of Rs. 45,000/-
has been paid by the appellant towards full
and final settlement to the respondent-bank
towards its dues, the appellant is entitled to
acquittal. The order of conviction and
sentence recorded by all courts is set aside
and he is acquitted of the charge levelled
against him."

15. The offences under the N.I. Act
can be compounded at any stage of the
3 All. Hari Om Vs. State of U.P. & Anr.
221
proceedings. In the case of Vinay Devanna
Nayak (supra) the Apex Court held as
follows:

"17. As observed by this Court in
Electronics
Trade
&
Technology
Development
Corpn.
Ltd.
v.
Indian
Technologists & Engineers (Electronics)
(P) Ltd. [(1996) 2 SCC 739 : 1996 SCC
(Cri) 454] the object of bringing Section
138 in the statute book is to inculcate faith
in the efficacy of banking operations and
credibility in transacting business on
negotiable instruments. The provision is
intended to prevent dishonesty on the part
of the drawer of negotiable instruments in
issuing cheques without sufficient funds or
with a view to inducing the payee or holder
in due course to act upon it. It thus seeks to
promote the efficacy of bank operations
and ensures credibility in transacting
business through cheques. In such matters,
therefore,
normally
compounding
of
offences should not be denied. Presumably,
Parliament also realised this aspect and
inserted Section 147 by the Negotiable
Instruments
(Amendment
and
Miscellaneous Provisions) Act, 2002 (Act
55 of 2002). The said section reads thus:

"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."

16. Section 147 of NI Act begins with
a non - obstante clause. The provision shall
prevail despite anything to the contrary in
any other or different statute. A dispute in
the nature of complaint under section 138
of N.I. Act, can be settled by way of
compromise irrespective of any other
legislation including Cr.P.C. in general and
section 320(1)(2) or (6) of the Cr.P.C. in
particular. The scheme of section 320
Cr.P.C. deals mainly with procedural
aspects; but it simultaneously crystallizes
certain enforceable rights and obligation.
Hence, this provision has an element of
substantive legislation and therefore, it can
be said that the scheme of section 320 does
not lay down only procedure; but still, the
status of the scheme remains under a
general law of procedure and as per the
accepted proposition of law, the special law
would prevail over general law. The
observations of the Apex Court in the case
of Municipal Corporation, Indore v.
Ratnaprabha : (1976) 4 SCC 622 is as
follows:

"4. As has been stated, clause (b)
of Section 138 of the Act provides that the
annual value of any building shall
"notwithstanding anything contained in any
other law for the time being in force" be
deemed to be the gross annual rent for
which the building might "reasonably at the
time of the assessment be expected to be let
from year to year". While therefore the
requirement of the law is that the
reasonable letting value should determine
the annual value of the building, it has also
been specifically provided that this would
be so "notwithstanding anything contained
in any other law for the time being in
force". It appears to us that it would be a
proper interpretation of the provisions of
clause (b) of Section 138 of the Act to hold
that in a case where the standard rent of a
building has been fixed under Section 7 of
the
Madhya
Pradesh
Accommodation
Control Act, and there is nothing to show
that there has been fraud or collusion, that
would be its reasonable letting value, but,
where this is not so, and the building has
never been let out and is being used in a
manner where the question of fixing its
standard rent does not arise, it would be
222 INDIAN LAW REPORTS ALLAHABAD SERIES
permissible to fix its reasonable rent
without regard to the provisions of the
Madhya Pradesh Accommodation Control
Act, 1961. This view will, in our opinion,
give proper effect to the non-obstante
clause in clause (b), with due regard to its
other provision that the letting value should
be "reasonable"."

17. A 'special law' means a provision of
law, which is not applicable generally but which
applies to a particular or specific subject or class
of subjects. Section 41 of the Indian Penal
Code, 1860 stands on the same footing and
defines the phrase "special law". A special law
or a statute is applicable to a particular subject,
then the same would prevail over a general law
with regard to the very subject. This is the
accepted principle in the field of interpretation
of statute.

18. Section 147 of N.I. Act starts with a
non - obstante clause and is an affirmative
enactment and as such has an overriding effect
on Section 320 Cr.P.C.

19. An offence of dishonour of cheque is
the compensatory aspect of the remedy which
should be given priority over the punitive
aspect.

20. Having regard to the aforesaid
position of law, even though the parties have
arrived at a settlement after the Appellate Court
had upheld the conviction of the petitioner, yet
keeping in view the spirit of Section 147 of the
NI Act, the offence under Section 138 of the
Act can be compounded. Therefore, this is a fit
case where cost is required to be waived while
compounding the offence. Since the parties
have settled their disputes, it is in the fitness of
things to close it at this stage itself as the
conditions of settlement are mutually accepted
between them. The dispute is an inter-se dispute
between the parties and by entering into a
settlement they have closed the dispute which
had arisen between them.

21. From perusal of the records and the
law laid down by the Apex Court on the subject
matter, the present case is a good case for
exercising powers by this Court to allow the
present revision.

22. The present revision is allowed. The
conviction and sentence under Section 138 of
the N.I. Act stands annulled as this Court
intends. The revisionist is acquitted on account
of compounding of the offence with the
complainant/person
affected
before
the
mediation centre of this Court.

23. The judgment and order dated
23.7.2016 passed by Sri Prabhakar Rao, H.J.S.,
Additional Sessions Judge, Court No.12, Agra
in Criminal Appeal No.74 of 2012 (Hari Om
Vs. Hari Shankar Yadav) and judgment and
order dated 24.2.2012 passed by Sri Ishtiyak
Ali, A.C.J.M, Court No.7, Agra in Complaint
Case no.1371 of 2011 (Hari Shankar Yadav Vs.
Hari Om), u/s 138 N.I. Act, P.S. Tajganj,
District Agra are hereby set-aside.

24. Office is directed to communicate this
order to the concerned court within two weeks
from today.
----------
(2022)03ILR A222
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.02.2022

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 4476 of 2019

Sujeet Patel @ Golu (Juvenile)
 ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties