# Rishi Mohan Srivastava v. State of U.P. & Anr

- **Citation:** (2021) 8 ILRA 589
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-13
- **Case number:** Application U/S 482/378/407 No. 516 of 2021
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rishi-mohan-srivastava-v-state-of-u-p-anr-47278
- **Pages:** 15

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 482 - Negotiable
Instrument
Act,
1981-Section
138quashing of criminal proceeding-cheque
bounce-petitioner issued two cheques
each
of
Rs.
one
lac
in
favour
of
complainant/opposite
party-cheque
bounced
due
to
insufficient
fundpetitioner convicted and he preferred an
appeal-appeal dismissed and the revision
too dismissed-after dismissal complainant
and petitioner entered into settlement for
compounding offence-N.I. Act primarily
compensatory not punitive and moreover
section 147 of the Act would have an
overriding effect on section 320 Cr.P.C.
irrespective of which stage the parties are
compromising with the kind leave of the
Court.(Para 1 to 31)

B. Offence made punishable u/s 138 of
N.I. Act is not only an offence qua
property but it is also of the nature of an
economic offence, though not covered in
the list of statutes enacted in reference to
section 468 Cr.P.C. thus, the parties, in
reference to offence u/s 138 N.I. Act r/w
section 147 of the Act are at liberty to
compound the matter at any stage even
after the dismissal of the application.(Para
32)

The petition is allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,950 of 47,849. This is a partial read: ask again with offset=39950 for what follows._

8 All. Rishi Mohan Srivastava Vs. State of U.P. & Anr.
589

24. Since the application for leave to
appeal has been rejected, the appeal also
does not survive and the same stands
dismissed.
----------
(2021)08ILR A589
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.08.2021

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Application U/S 482/378/407 No. 516 of 2021

Rishi Mohan Srivastava ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Naved Ali, Sandeep Yadav

Counsel for the Opposite Parties:
G.A., Pawan Bhaskar

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 482 - Negotiable
Instrument
Act,
1981-Section
138quashing of criminal proceeding-cheque
bounce-petitioner issued two cheques
each
of
Rs.
one
lac
in
favour
of
complainant/opposite
party-cheque
bounced
due
to
insufficient
fundpetitioner convicted and he preferred an
appeal-appeal dismissed and the revision
too dismissed-after dismissal complainant
and petitioner entered into settlement for
compounding offence-N.I. Act primarily
compensatory not punitive and moreover
section 147 of the Act would have an
overriding effect on section 320 Cr.P.C.
irrespective of which stage the parties are
compromising with the kind leave of the
Court.(Para 1 to 31)

B. Offence made punishable u/s 138 of
N.I. Act is not only an offence qua
property but it is also of the nature of an
economic offence, though not covered in
the list of statutes enacted in reference to
section 468 Cr.P.C. thus, the parties, in
reference to offence u/s 138 N.I. Act r/w
section 147 of the Act are at liberty to
compound the matter at any stage even
after the dismissal of the application.(Para
32)

The petition is allowed. (E-5)

List of Cases cited:

1. Damodar S. Prabhu Vs Sayed Babalal (2010)
2 SCC (Cri) 1328

2. M/s Meters and Instruments Pvt Ltd & anr. Vs
Kanchan Mehta (2017) 7 Supreme 558

3. Kripal Singh Pratap Singh Ori Vs Salvinder
Kaur Hardip Singh (2004) Crl. , L.J. 3786

4. Vinay Devanna Nayak Vs Ryot Seva Sahkari
Bank Ltd. (2008) AIR SC 716

5. Tanveer Aquil Vs St. of M.P. & Anr (1999)
Supp SCC 63

6. Narinder Singh Vs St. of Punj. (2014) 6 SCC
466

7. Rajinder Prasad Vs Bashir & ors. (2001) AIR
SC 3524

8. Krishan Vs Krishnaveni (1997) 4 SCC 241

9. Municipal Corpn. Indore Vs Ratnaprabha
(1977) AIR SC 308

(Delivered by Hon'ble Chandra Dhari
Singh, J.)

 1. The instant petition under section
482 Cr. P.C. has been filed with the
prayer
to
compound
the
offence
committed by the petitioner under section
138 of the Negotiable Instrument Act,
1981 in Complaint Case No.515 of 2016
(Abhay Singh vs. Jai Construction Co.
and another) and further to quash the
sentence of one year awarded to the
petitioner.
590 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The facts of the case, in brief, are
that the petitioner and opposite party no.2
had a business relationship and during the
course of business, the petitioner had issued
two cheques each of Rs.1,00,000/- (One
Lakh) in favour of opposite party no.2 and
when he had deposited, the cheques were
bounced due to insufficient fund. The
opposite party no.2 filed a complaint case
bearing no.515 of 2016 (Abhay Singh vs.
Jai Construction Co. and another) under
section 138 of the Negotiable Instrument
Act (for short 'N.I. Act'). After the
completion of the trial, the court has
convicted the petitioner and sentenced him
one year simple imprisonment and fine of
Rs.3,00,000/- (Rupees three lakhs) vide
judgment and order dated 27.11.2019.
Being
aggrieved
the
petitioner
had
preferred a Criminal Appeal No.01 of 2020
before the Additional Sessions Judge,
Faizabad and at the time of hearing the
appeal,
the
petitioner
had
deposited
Rs.1,00,000/-
(one
lakh)
before
the
Additional
Sessions
Judge,
Faizabad,
ultimately the appeal had been dismissed
vide order dated 14.12.2020 against which
the petitioner has preferred a Criminal
Revision No.664 of 2020 before this
Hon'ble Court which too had been
dismissed at the admission stage vide order
dated 18.12.2020. After the dismissal of the
criminal revision, the complainant/opposite
party no.2 and the petitioner have entered
into settlement through his father and is
ready to make payment of rest of
Rs.2,00,000/- (Two Lakhs) by means of
Demand Draft No.374901 of State Bank of
India to opposite party no.2. On 22.01.2021
the petitioner and the opposite party no.2
have amicably entered into the agreement,
which is placed on record as Annexure 4 to
the instant petition. The accused/petitioner
has moved this court under section 482 of
Cr.P.C. for the following relief:-

"It is therefore prayed to this
Hon'ble Court kindly may be pleased to
compound the offence committed by the
petitioner under section 138 of the
Negotiable Instruments Act, 1981, in
complaint case No. - 515 of 2016, District -
Faizabad, titled as "Abhay Singh Vs. Jai
Construction Co. and another" and further
quash the sentence of 1 year awarded to
the petitioner"

3. With this background, learned
counsel for the petitioner has submitted that
this petition has been filed on 01.02.2021
on the basis of changed circumstances with
the prayer to compound the offence.
Learned counsel further submits that this
Hon'ble Court may invoke its inherent
power under section 482 Cr.P.C. so that
ends of justice could be secured as the
object
of
'N.
I.
Act'
is
primarily
compensatory
and
not
punitive
and
moreover section 147 of 'N.I. Act' would
have an overriding effect on section 320
Cr.P.C. irrespective of which stage the
parties are compromising with the kind
leave of this Hon'ble Court. It has also been
submitted that on 11.02.2021, the coordinate Bench of this Court passed an
order and directed the parties to appear
before the Senior Registrar Lucknow
Bench on 23.02.2021, so the factum of
compromise
could
be
verified.
In
compliance of the order dated 11.02.2021,
both the parties had appeared before the
Senior Registrar of this Court and the
compromise deed was verified by the
Senior Registrar. Learned counsel submits
that the petitioner is languishing in jail
since 14.12.2020 and has already served
half of the sentence.

4. In support of his arguments,
learned counsel for the petitioner has
submitted that in the case of Damodar S.
8 All. Rishi Mohan Srivastava Vs. State of U.P. & Anr.
591
Prabhu vs. Sayed Babalal H report at
2010 (2) SCC (Cri) 1328, the Hon'ble
Apex Court had formulated the guidelines
for compounding the offence under section
138 N.I. Act wherein in para 21, the
following has been held :

"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."

5. Learned counsel also submitted that
in
the
case
of
M/s
Meters
and
Instruments
Private
Limited
and
another vs. Kanchan Mehta reported at
2017 (7) Supreme 558 Hon'ble the Apex
Court in para 18, the following has been
held :

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. 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
592 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

6. Learned counsel for the petitioner
has further submitted that the petition under
section 482 Cr.P.C. is maintainable after
the dismissal of the revision on merit. To
support of this arguments, he has relied
upon the judgment of Gujarat High Court
in the case of Kripal Singh Pratap Singh
Ori vs. Salvinder Kaur Hardip Singh
reported at 2004 Crl. L. J. 3786 wherein
the following has been held :

"16.I
have
considered
the
decisions cited by the learned counsel for
the respective party and some other
decisions of the Apex Court and I do not
think it necessary to enlist those decisions
which are taken into consideration for the
purpose of the present proceedings. But
ultimately one balanced principle has
emerged
that
the
petitions
invoking
inherent powers under section 482 Cr.P.C.
after
dismissal/disposal
or
revision
application under section 397 Cr.P.C. read
with
section
401
Cr.P.C.,
are
not
maintainable by the same party, more so
when no special circumstances are made
out. The gist of this ratio is reflected in the
decision reported in AIR 2001 SC 3524 in
8 All. Rishi Mohan Srivastava Vs. State of U.P. & Anr.
593
the case of Rajinder Prasad vs. Bashir and
ors. It was contended before the Apex
Court that as the earlier revision petition
filed by the accused persons under section
397 of the Code has been rejected by the
High Court vide order dated 13.7.1990,
they had no right to file the petition under
section 482 of the Code with prayer for
QUASHING the same order. While dealing
with the above contention the Apex Court
observed that, "...We do not agree with the
arguments of the learned counsel for the
respondents that as the earlier application
had been dismissed as not pressed, the
accused had acquired a right to challenge
the order adding the offence under section
395 of the Code ..." (i.e. IPC) It is further
observed that, "We are of the opinion that
no special circumstances were spelt out in
the subsequent application for invoking the
jurisdiction of the High Court under
Section 482 of the Code and the impugned
order is liable to be set aside on this ground
alone.."

17. So can be legitimately argued
and inferred and held that in all cases
where the petitioners are able to satisfy this
court that there are special circumstances
which can be clearly spelt out , subsequent
application invoking INHERENT powers
under section 482 Cr.P.C. can be moved
and cannot be thrown away on the technical
argument as to its sustainability. The apex
court in case of Rajendra Prasad (supra)
was dealing with a case related to first part
of section 482 Cr.P.C. but, when it comes
to third part, the approach should remain
more pragmatic and indirect relegation to
Supreme Court, if legally possible, can be
prevented.

31. In the circumstances, it is
hereby declared that the compromise
arrived between the parties to this litigation
out of court is accepted as genuine and the
order of conviction and sentence passed by
the
learned
JMFC,
Vadodara
and
confirmed in appeal by the learned
Sessions
Judge,
Fast
Track
Court,
Vadodara, therefore, on the given set of
facts are hereby quashed and set aside as
this court intends, otherwise to secure the
ends of justice as provided under section
482 Cr.P.C. Obviously the order disposing
Revision Application would not have any
enforceable effect.

7. Learned counsel has also relied
upon the judgment of Hon'ble the Apex
Court in the case of Vinay Devanna Nayak
vs. Ryot Seva Sahkari Bank Limited
reported at AIR 2008 SC 716 wherein the
Hon'ble 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."

8. Learned counsel for the petitioner
has
argued
that
the
law
regarding
compounding of offences under the N.I.
594 INDIAN LAW REPORTS ALLAHABAD SERIES
Act is very clear and is no more res integra
and the offences under the N. I. Act can be
compounded even at any stage of the
proceedings. He submits that in terms of
the aforesaid law laid down by the Hon'ble
Supreme Court, the parties may be
permitted to compound the offence and the
conviction of the petitioner be set aside.

9. Per-contra, Sri Alok Saran learned
AGA for the State has vehemently opposed
the submissions made by the learned
counsel for the petitioner and submitted
that the instant petition under section 482
Cr.P.C. is not maintainable as the petitioner
has already been convicted by the court
below and the conviction order has been
upheld by the appellate court and by this
Hon'ble Court in the revision. Learned
AGA has submitted that the present
petition under section 482 Cr.P.C. is not
maintainable as the High Court has
dismissed the revision application on
merits. It is further submitted that in view
of the provisions of Sub-section (6) of
Section 320 Cr.P.C. and the observations
made by the Hon'ble Supreme Court in the
case of Tanveer Aquil vs. State of M.P.
and another (19990) Supp SCC 63, the
parties should be relegated to the Hon'ble
Apex
Court
to
initiate
appropriate
proceedings to get the actual affect of
compromise arrived at between the parties.
In the case of Tanveer Aquil (supra) the
appellant was convicted under section 324
I.P.C. and was ordered to suffer rigorous
imprisonment for one year and to pay a fine
of Rs.500/-. After the pronouncement of
the judgment by the High Court the learned
Counsel appeared and pleaded for an
opportunity of hearing and at that stage the
High Court again heard the matter and
added a postscript in the judgment
confirming the conviction and sentence.
The petitioner thereafter had moved the
High Court for a compromise to compound
the offence. It was submitted to the High
Court that the accused has paid a sum of
Rs.3,500/- to the complainant and the
learned Counsel for the complainant
confirmed of having received the amount
of Rs. 3,500/- in token of the compromise
arrived between the parties. In Para 1 of the
cited decision the Apex Court has observed
that ".......... but the High Court did not and
indeed could not take into consideration
that application since it has deposed of the
matter already."

10. Learned AGA has also submitted
that when this Court has already rejected
the revision application on merits, whether
the parties or any one of them can be
permitted to place compromise and to get
an order of acquittal from the very Court, is
the question. Therefore, in more than one
decisions, the Hon'ble Apex Court has
observed that the petition invoking inherent
powers under section 482 Cr.P.C. is not
maintainable when the earlier revision
application filed under Section 397 Cr.P.C.
read with Section 401 Cr.P.C. seeking same
or similar relief, when dismissed on merit,
or has not pressed. However, in the same
way the Hon'ble Apex Court has observed
in more than one cases that such petitions,
though otherwise, are not maintainable, can
even
be
entertained
when
special
circumstances
are
made
out.
These
observations are in reference to third part of
Section 482 of Cr. P.C. Learned AGA has
submitted that the present petition is
nothing but a gross misuse of the process of
the law. There is no ground available to the
petitioner for invoking the inherent power
under section 482 Cr.P.C. for compounding
the
sentence
on
the
basis
of
the
compromise as filed by the petitioner. The
present petition is devoid of any merit
hence it is to be dismissed.
8 All. Rishi Mohan Srivastava Vs. State of U.P. & Anr.
595

11. I have heard the learned counsel
for the parties and carefully perused the
compromise arrived at between the parties
and other materials on record.

12. Considering the facts as narrated
above, the following two questions arise for
consideration -

Whether an order passed by the
High Court in the criminal revision petition
confirming the conviction can be nullified
by the High Court in a petition filed under
section 482 Cr.P.C. noticing subsequent
compromise of the case by the contesting
parties ?

13. Before answer the aforesaid
questions as framed, I shall examine the
relevant provisions of the Cr.P.C. as well
the Negotiable Instrument Act. I may
extract the Section 320 Cr.P.C., Section
147 of the Negotiable Instrument Act and
Section 482 Cr.P.C.

Section
320
Cr.P.C.
-
Compounding of Offences -

1)
The offences
punishable
under the sections of the Indian Penal
Code (45 of 1860), specified in the first
two columns of the Table next following
may be compounded by the persons
mentioned in the third column of that
Table -

2)
The offences
punishable
under the Sections of the Indian Penal
Code (45 of 1860), specified in the first
two columns of the Table next following
may, with the permission of the Court
before which any prosecution for such
offence is pending be compounded by the
persons mentioned in the third column of
that Table -

3)
When
any
offence
is
compoundable under this section, the
abetment of such offence or an attempt to
commit such offence (when such attempt is
itself an offence) may be compounded in
like manner.

4) (a) When the person who
would
otherwise
be
competent
to
compound an offence under this section is
under the age of eighteen years or is an
idiot or a lunatic, any person competent to
contract on his behalf may, with the
permission of the Court, compound such
offence.

(b) When the person who would
otherwise be competent to compound an
offence under this section is dead, the legal
representative, as defined in the Code of
Civil Procedure, 1908 (5 of 1908) of such
person may, with the consent of the Court,
compound such offence

5) When the accused has been
committed for trial or when he has been
convicted and an appeal is pending, no
composition for the offence shall be
allowed without the leave of the Court to
which he is committed, or as the case
may be, before which the appeal is to be
heard.

6) A High Court or Court of
Session acting in the exercise of its powers
of revision under Section 401 may allow
any person to compound any offence which
such person is competent to compound
under this section.

7)
No
offence
shall
be
compounded if the accused is, by reason of
a previous conviction, liable either to
enhanced punishment or to a punishment of
a different kind for such offence.
596 INDIAN LAW REPORTS ALLAHABAD SERIES

8) The composition of an offence
under this section shall have the effect of
an acquittal of the accused with whom the
offence has been compounded.

9)
No
offence
shall
be
compounded except as provided by this
section.

Section 147 of the Negotiable
Instrument Act :

"Notwithstanding
anything
contained
in
the
Code
of
Criminal
Procedure, 1973 (2 of 1974), every offence
punishable
under
this
Act
shall
be
compoundable."

Section 482 Cr.P.C. :

Saving of inherent powers of
High Court. Nothing in this Code shall be
deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect to
any order under this Code, or to prevent
abuse of the process of any Court or
otherwise to secure the ends of justice.

14. I have to refer relevant portions of
the compromise deed which is on the
record for proper adjudication :-

7. That now the complainant -
second party is ready for the settlement of
the pecuniary dispute on an amount of Rs.-
3,00,000/- with the First Party through his
father as the First Party is languishing in
jail after the judgment and order of
conviction. As agreed, the First Party will
make a payment of Rs. 2 lakhs by means of
a Demand draft no. 374901 of State Bank
of India. The rest 1 Lakh which is already
lying deposited with the Additional Court,
Faizabad would be withdrawn by the
Second Party. The First Party would carry
out the documentation which is required
for the withdrawal by the Second Party.

8. That now remains no grouse,
complaintor grievance between both the
parties. Both the parties are ready to get
the matter settled/ quashed by a Court of
Law as the dispute was personal in nature.

9. That thus the parties have
amicably entered in this agreement and
both parties in sound and disposing mind
and under no Fear, Fraud, Influence,
Coercion or under any force or compulsion
or
pressure
have
mutually
agreed
mentioned as under:

NOW THE DEED OF
AGREEMENT / COMPROMISE

WITNESSES AS
UNDER

1. That the first party is ready to
pay the amount i.e. Rs.- 3,00,000/- business
debt to the second party..

2. That the second party also
wants to settle the pecuniary dispute with
the first party.

3. That the second party has not
any grievance against the first party

4. That the dispute between the
parties is private in nature.

5. That it is further agreed
between the parties that neither of the
parties shall file any complaint/ suit/
petition/ FIR and/or any other proceedings
before any court of law/any authority for
the
same
offence.
Both
the
parties
undertake that there is no other complaint/
petition/ suit/ FIR pending against each
8 All. Rishi Mohan Srivastava Vs. State of U.P. & Anr.
597
other of the same dispute and if the same is
found, the same compromised Agreement."
shall in stand null and void and terms of
this "Settlement

6. That the Second Party shall
make
no
further
complaint/
First
Information Report against First Party or
his family members regarding the said
bounced cheques, this clause shall be an
exception for any other fresh cause of
action(s) or activity(s).

7. That both the Parties shall
assist each other in prudently pursuing the
petition to quash the judgment dated
27.11.2019 passed by Additional Court,
Faizabad and subsequent judgment passed
by Additional District Judge, Court 110.
10,
Faizabad
incriminal
appeal
no.
01/2020 and other subsequent proceeding
(s) and shall appear in the concerned Court
as and when necessary and required to
record necessary statements/pleadings as
per law. DIA

8. That both the parties shall
have on satisfaction of aforementioned
terms no further claims whatsoever against
each other from this day onwards and
terms of the aforementioned deed are
binding on them. Any party who denies the
above mentioned compromise/ agreement
will be liable for legal action and claims.

9.
That
this
compromise
/
agreement is being executed voluntarily
and with mutual consent without any Fear,
Pressure, Force, Fraud, Undue Influence,
Coercion in the presence of members of the
family / relative.

15. It is well settled that inherent
powers under section 482 Cr.P.C. can be
exercised only when no other remedy is
available to the litigant and not where a
specific remedy is provided by the statute.
It is also well settled that if an effective
alternative remedy is available, the High
Court will not exercise its inherent power
under this section, specially when the
applicant may not have availed of that
remedy.

16. Inherent powers under Section
482 of Cr.P.C. include powers to quash
FIR,
investigation
or
any
criminal
proceedings pending before the High Court
or any Courts subordinate to it and are of
wide magnitude and ramification. Such
powers can be exercised to secure ends of
justice, prevent abuse of the process of any
court and to make such orders as may be
necessary to give effect to any order under
this Code, depending upon the facts of a
given case. The court can always take note
of any miscarriage of justice and prevent
the same by exercising its powers u/s 482
of Cr.P.C. These powers are neither limited
nor curtailed by any other provisions of the
Code. However, such inherent powers are
to be exercised sparingly and with caution.

17. The High Courts in deciding
matters under Section 482 should be guided
by following twin objectives, as laid down
in the case of Narinder Singh vs. State of
Punjab (2014) 6 SCC 466:

i. Prevent abuse of the process of
the court.

ii. Secure the ends of justice.

iii. To give effect to an order
under the Code.

18. In the instant case, it is true that
this Court had dismissed the criminal
revision and upheld the conviction and
sentence passed by the court below but it
cannot be lost sight of the fact that this
598 INDIAN LAW REPORTS ALLAHABAD SERIES
Court has the power to intervene in
exercise of the powers vested under section
482 Cr.P.C. only with a view to do the
substantial justice or to avoid miscarriage
and the spirit of the compromise arrived at
between the parties. This is perfectly
justified and legal too.

19. I have considered the judgments
cited by the learned counsel for the
petitioner as well as by the learned Counsel
for the State and other decisions of the
Hon'ble Apex Court and I do not think it
necessary to enlist those decisions which
are taken into consideration for the purpose
of the present proceedings.

20. In the instant case, the petitioner
is invoking the inherent power as vested
under section 482 Cr.P.C. after the
dismissal of the revision petition under
section 397 Cr.P.C. read with section 401
Cr.P.C. In this circumstances, I have to
examine the maintainability of the present
petition under section 482 Cr.P.C. and also
to examine as to whether for entertaining
the
aforesaid
petition,
any
special
circumstances are made out or not. The gist
of the ratio is reflected in the decision of
the Hon'ble Apex Court in the case of
Rajinder Prasad vs. Bashir and Others;
AIR 2001 SC 3524. In that case, it was
contended before the Apex Court that as
per the earlier revision filed by the accused
persons under section 397 of the Code has
been rejected by the High Court vide order
dated 13.05.1990, they had no right to file
the petition under section 482 Cr.P.C. with
the prayer for quashing the same order.
While dealing with the above contention,
the Apex Court observed that -

"We are of the opinion that no
special circumstances were spelt out in the
subsequent application for invoking the
jurisdiction of the High Court under section
482 of the Code and the impugned order is
liable to be set aside on this ground alone."

So it can be legitimately argued
and inferred and held that in all cases
where the petitioners are able to satisfy this
court that there are special circumstances
which can be clearly spelt out, subsequent
application invoking inherent powers under
section 482 Cr.P.C. can be moved and
cannot be thrown away on the technical
argument as to its sustainability.

21. In the case of Krishan Vs.
Krishnaveni, reported in (1997) 4 SCC
241, Hon'ble the Apex Court has held that
though the inherent power of the High
Court is very wide, yet the same must be
exercised
sparingly
and
cautiously
particularly in a case where the petitioner is
shown to have already invoked the
revisional jurisdiction under section 397 of
the Code. Only in cases where the High
Court finds that there has been failure of
justice or misuse of judicial mechanism or
procedure, sentence or order was not
correct, the High Court may in its
discretion prevent the abuse of process or
miscarriage
of
justice
by
exercising
jurisdiction under section 482 of the Code.

22. For adjudicating the instant
petition, the facts as stated hereinabove are
very relevant. Here, the petitioner has
attempted to invoke the jurisdiction of this
court vested under section 482 Cr.P.C. The
embargo of sub section 6 of section 320
Cr.P.C. as pointed out by learned AGA
would not come in the way so far as the
relief prayed in this petition.

23. I am not in agreement that when
the adjudication of a criminal offence has
reached to the state of revisional level,
8 All. Rishi Mohan Srivastava Vs. State of U.P. & Anr.
599
there cannot be any compromise without
permission of the court in all case including
the offence punishable under 'N.I. Act' or
the offence mentioned in Table-1 (one) can
be compounded only if High Court or
Court of Sessions grants permission for
such
purpose.
The
Court
presently,
concerned with an offence punishable
under 'N.I. Act'.

24. 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 I can refer to the following
extracts from an academic commentary
[Cited from : K.N.C. Pillai, R.V. Kelkar's
Criminal Procedure, 5th Edition :

"17.2 - compounding of offences
- 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 relatively 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..."

25. Section 147 of NI Act begins with
a non obstante clause and such clause is
being used in a provision to communicate
that the provision shall prevail despite
anything to the contrary in any other or
different legal provisions. So, in light of the
compass provided, 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. For the
sake of convenience, I would like to quote
the observations of Hon'ble the Apex Court
in the case of Municipal Corporation,
Indore vs. Ratnaprabha reported in (AIR
1977 SC 308) which reads as under :

"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
600 INDIAN LAW REPORTS ALLAHABAD SERIES
standard rent does not arise, it would be
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"

26. The expression '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 Indian Penal Code
stands on the same footing and defines the
phrase special law. In this connection I
would like to quote the well accepted
proposition of law emerging from various
observations made by the Hon'ble Apex
Court in different decisions as a gist of the
principle and it can be summarised as
under:

"When 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, is the
accepted
principle
in
the
field
of
interpretation of statute."

27. In reference to offence under
section 138 of N.I. Act read with section
147 of the said Act, the parties are at
liberty to compound the matter at any
stage even after the dismissal of the
revision application. Even a convict
undergoing
imprisonment
with
the
liability to pay the amount of fine
imposed by the court and/or under an
obligation
to
pay
the
amount
of
compensation if awarded, as per the
scheme of N.I. Act, can compound the
matter. The complainant i.e. person or
persons affected can pray to the court that
the accused, on compounding of the
offence may be released by invoking
jurisdiction of this court under section
482 Cr.P.C. If the parties are asked to
approach the Apex Court then, what will
be situation, is a question which is
required
to
be
considered
in
the
background
of
another
accepted
progressive
and
pragmatic
principle
accepted by our courts that if possible,
the parties should be provided justice at
the door step. The phrase "justice at the
door step" has taken the court to think
and reach to a conclusion that it can be
considered and looked into as one of such
special circumstances for the purpose of
compounding the offence under section
147 of the N. I. Act.

28. It is also well settled that the
operation or effect of a general Act may
be curtailed by special Act even if a
general Act contains a non obstante
clause. But here is not a case where the
language of section 320 Cr.P.C. would
come in the way in recording the
compromise or in compounding the
offence punishable under section 138 of
the N.I. Act. On the contrary provisions
of section 147 of N.I. Act though starts
with a non obstante clause, is an
affirmative enactment and this is possible
to infer from the scheme that has
overriding effect on the intention of
legislature
reflected
in
section
320
Cr.P.C.

29. Merely because the litigation has
reached to a revisional stage or that even
beyond that stage, the nature and character
of
the
offence
would
not
change
automatically and it would be wrong to
hold that at revisional stage, the nature of
offence punishable under Section 138 of
the N.I. Act should be treated as if the same
8 All. Rishi Mohan Srivastava Vs. State of U.P. & Anr.
601
is falling under table-II of Section 320
IPC. I would like to reproduce some part
of the statement of objects and reasons
of
the
Negotiable
Instruments
(Amendment
&
Miscellaneous
Provisions) Act, 2002 :

"The Negotiable Instrument Act
1881 was amended by the Banking,
Public
Financial
Institutions
and
Negotiable
Instrument
Laws
(Amendment) Act, 1988 wherein a new
Chapter XVII was incorporated for
penalties in case of dishonour of cheques
due to insufficiency of funds in the
account of the drawer of the cheque.
These provisions were incorporated with
a view to encourage the culture of use of
cheques and enhancing the credibility of
the instrument. The existing provisions in
the Negotiable Instrument Act, 1981,
namely Section 138 to 142 in Chapter
XVII have been found deficient in dealing
with dishonour of cheques. Not only the
punishment provided in the Act has
proved to be inadequate, the procedure
prescribed for the courts to deal with
such matters has been found to be
cumbersome. The Courts are unable to
dispose of such cases expeditiously in a
time bound manner in view of the
procedure contained in the Act.

2.