# Smt. Rani Gaur Revisionist v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 620
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-26
- **Case number:** Criminal Revision No. 2230 of 2023
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rani-gaur-revisionist-v-state-of-u-p-ors-50396
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - The Negotiable instruments Act,
1981- Section 138 - Dishonour of cheque
for insufficiency, etc., of funds in the
account - Offence under Section 138 of
the Act is primarily a civil wrong- case has
to be normally tried in a summery manner
as prescribed in Cr.P.C. - consent of the
complainant for compounding the offence
under Section 138 of the Negotiable
Instruments Act is must - case can be
disposed
of
without
obtaining
direct
consent of the complainant under certain
circumstances - circumstances included
offering an amount fair and acceptable
which in the opinion of the court is
appropriate for duly compensating the
complainant - under certain circumstances
the court can proceed in absence of direct
consent - court is empowered to apply its
7 All. Smt. Rani Gaur Vs. State of U.P. & Ors.
621
discretion in terms of provisions of Section
258 Cr.P.C. (Para -8)

Complaint under Section 138 NI Act - pending
before trial court - accused filed a demand draft
of Rs. 11 lakhs - requested to compound the
case - revisionist objected - not ready to settle
matter for Rs. 11 lakhs after lapse of 13 years -
Magistrate
rejected
application
-
accused
challenged order - revisional court decided to
set aside impugned order - directed trial court
to pass an appropriate order - as per the law
laid down by Apex Court in M/s Meters and
Instruments Private Limited and Another
vs. Kanchan Mehta - Instant Revision. (Para
-3)

HELD:-Where an appropriate amount has
been offered/deposited, the trial court may
consider to drop the proceeding (M/s Meters
and Instruments Private Limited and
Another vs. Kanchan Mehta ).Provisions of
section 138 NI Act regarding fine may act as
the best guide coupled with all the peculiar
facts and circumstances of each case to
determine the amount of compensation being
just, fair and acceptable. Court must record
its satisfaction before it proceeds to finally
decide and drop the proceedings under
section 258 Cr.P.C. No cause for interference.
(Para -8,9)

Revision dismissed. (E-7)

List of Cases cited:

## Text

620 INDIAN LAW REPORTS ALLAHABAD SERIES
in case of JIK Industries Limited and
others versus Amarlal vs. Jumnai and
another, 2012(1) RCR (Criminal) 822,
which mandated that the consent of the
complainant for compounding the offence
under Section 138 of the Negotiable
Instruments Act is must.

8. I studied both the judgments. The
Supreme Court did not say that the
requirement of consent for compounding
may just be done away with. Instead
widening the compensatory aspect of cases
filed under Section 138 of the Negotiable
Instrument Act, the Apex Court has carved
out a window in the existing scheme of
things saying that the case can be disposed
of without obtaining direct consent of the
complainant under certain circumstances.
The circumstances included offering an
amount fair and acceptable which in the
opinion of the court is appropriate for duly
compensating the complainant. That is
under certain circumstances the court can
proceed in absence of direct consent. The
court is empowered to apply its discretion
in terms of provisions of Section 258
Cr.P.C. It may be made clear that this
aspect of the matter is distinct and
separate from compounding of the case
where both the parties agree. The
revisional court has remanded the matter
to decide it afresh as per law laid down in
M/s Meters and Instruments Private
Limited and Another vs. Kanchan Mehta
(supra). By the aforesaid judgment the
Apex Court has emphasized that where an
appropriate
amount
has
been
offered/deposited, the trial court may
consider
to
drop
the
proceeding.
Definitely the objections, if any, in this
regard shall be taken into consideration
The court has not lost its power of
discretion in such matters. In view of the
above I do not find any cause for
interference.

9. Accordingly, this criminal revision
is dismissed.
----------
(2023) 7 ILRA 620
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.05.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 2230 of 2023

Smt. Rani Gaur ...Revisionist
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Revisionist:
Sri Abhitab Tiwari

Counsel for the Respondents:
G.A., Mrs. Archana Tyagi, Sri Pankaj Kumar
Tyagi

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - The Negotiable instruments Act,
1981- Section 138 - Dishonour of cheque
for insufficiency, etc., of funds in the
account - Offence under Section 138 of
the Act is primarily a civil wrong- case has
to be normally tried in a summery manner
as prescribed in Cr.P.C. - consent of the
complainant for compounding the offence
under Section 138 of the Negotiable
Instruments Act is must - case can be
disposed
of
without
obtaining
direct
consent of the complainant under certain
circumstances - circumstances included
offering an amount fair and acceptable
which in the opinion of the court is
appropriate for duly compensating the
complainant - under certain circumstances
the court can proceed in absence of direct
consent - court is empowered to apply its
7 All. Smt. Rani Gaur Vs. State of U.P. & Ors.
621
discretion in terms of provisions of Section
258 Cr.P.C. (Para -8)

Complaint under Section 138 NI Act - pending
before trial court - accused filed a demand draft
of Rs. 11 lakhs - requested to compound the
case - revisionist objected - not ready to settle
matter for Rs. 11 lakhs after lapse of 13 years -
Magistrate
rejected
application
-
accused
challenged order - revisional court decided to
set aside impugned order - directed trial court
to pass an appropriate order - as per the law
laid down by Apex Court in M/s Meters and
Instruments Private Limited and Another
vs. Kanchan Mehta - Instant Revision. (Para
-3)

HELD:-Where an appropriate amount has
been offered/deposited, the trial court may
consider to drop the proceeding (M/s Meters
and Instruments Private Limited and
Another vs. Kanchan Mehta ).Provisions of
section 138 NI Act regarding fine may act as
the best guide coupled with all the peculiar
facts and circumstances of each case to
determine the amount of compensation being
just, fair and acceptable. Court must record
its satisfaction before it proceeds to finally
decide and drop the proceedings under
section 258 Cr.P.C. No cause for interference.
(Para -8,9)

Revision dismissed. (E-7)

List of Cases cited:

1. M/s Meters & Instruments Pvt. Ltd. & anr. Vs
Kanchan Mehta, AIR 2017 SC 4594

2. Damodar S Prabhu Vs Sayed Babalal, (2010)
5 SCC 663

3. Nidhi Knitwears Pvt. Ltd. & anr. Vs Honey
Hosiery Mills, 2022 0 Supreme (P & H) 549

4. Anant Tools (Unit No.II) Pvt. Ltd. & ors. Vs
M/s Anant Tools Pvt. Ltd., Jalandhar, 2019(1)
RCR (Criminal) 137

5. JIK Industries Ltd. & ors. Vs Amarlal
VsJumnai & anr., 2012(1) RCR (Criminal)
822
(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Abhitab Kumar Tiwari,
learned counsel for the revisionist, Sri O.P.
Mishra, learned AGA for the State and
Smt. Archana Tyagi, learned counsel for
respondents.

2. By means of this criminal revision,
the revisionist has challenged an order
dated 23.03.2023 passed by Session Judge,
Meerut in criminal revision no. 206 of 2023
(Vishwakarma Builders and Others vs.
State of U.P. and Another) whereby the
learned revisional court set aside the order
dated 24.02.2023 passed by Additional
Special Court no. 2, Meerut in criminal
complaint case no. 1575 of 2009 (Rani
Gaur vs. Vishwakarma Builders and
Others)
under
Section
138
of
the
Negotiable Instrument Act, Police Station
Partapur, District Meerut.

3. Relevant facts are as below:-

The instant revisionist filed a
complaint on 11.08.2009 under Section 138
of the Negotiable Instrument Act, which is
pending before the trial court; during the
course of proceedings the accused filed a
demand draft of Rs. 11 lakhs and made a
prayer before the trial court to direct the
revisionist/complainant to compound the
case;
the
revisionist
objected
to
compounding saying that she is not ready
to settle the matter for Rs. 11 lakhs after
lapse of 13 years; the learned Magistrate
rejected the application of the accused on
the ground that the complainant cannot be
compelled to compound the matter; the
accused challenged the aforesaid order by
filing a revision; the revision came to be
decided by the learned revisional court
whereby the impugned order was set aside
622 INDIAN LAW REPORTS ALLAHABAD SERIES
and the trial court was directed to pass an
appropriate order as per the law laid down
by the Apex Court in M/s Meters and
Instruments Private Limited and Another
vs. Kanchan Mehta: AIR 2017 Supreme
Court 4594.

4. It is contended on behalf of the
revisionist that the finding recorded by the
revisional court is illegal and arbitrary and
against the provisions of law; the accused, after
lapse of about 14 years wants to get the matter
compounded by giving the amount of the
cheque with additional about 10% only; she has
been suffering since 2019 and has been in dire
need of money for domestic purposes; the
accused is not entitled to any benefit in the light
of the judgment of the Apex Court in Damodar
S Prabhu vs. Sayed Babalal: (2010) 5 SCC
663 and in the light of the judgment of M/s
Meters and Instruments Private Limited and
Another vs. Kanchan Mehta (supra). Citing
certain circumstances relating to the present
controversy, story, the background facts and
civil suit between the two, it is argued on behalf
of the revisionist that apprehending his
imminent failure in both the cases, he sought to
save himself by giving Rs. 11 lakhs for the
cheque amount of Rs. 10 lakhs, after 13 years
of suffering.

5. I went through the judgment of the
Supreme Court in M/s Meters and Instruments
Private Limited and Another vs. Kanchan
Mehta (supra). The Supreme Court highlighted
the fact that the matters under Section 138 of
the Negotiable Instruments Act are essentially
civil wrongs and the case has to be normally
tried in a summery manner as prescribed in
Cr.P.C. The Apex Court observed in Para-18 of
the judgment as below:-

"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 theCr.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
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."

6. On the other hand, the respondent
has drawn my attention to a judgment of
Punjab and Haryana High Court in Nidhi
Knitwears Pvt. Ltd. And Another vs.
Honey Hosiery Mills: 2022 0 Supreme (P
& H) 549. The Punjab and Haryana High
Court has referred to the judgment of
Supreme Court in M/s Meters and
Instruments Private Limited and Another
vs. Kanchan Mehta (supra), wherein it is
observed as below:-
7 All. Smt. Rani Gaur Vs. State of U.P. & Ors.
623

"12. This Court in M/s Anant
Tools's case (supra), has comprehensively
dealt with the judgments in JIK Industries'
case
(supra)
and
M/s
Meters
and
Instruments' case (supra). In Para 12 of the
judgment (reproduced hereinabove), a coordinate Bench of this Court came to the
conclusion that if a subsequent Bench of
the Hon'ble Supreme Court differs with the
view taken by an earlier Bench of equal
strength, then the only course open for the
subsequent Bench is to refer the matter to a
larger Bench. In case, the above option has
not been exercised by the subsequent
Bench, then it is the view taken by an
earlier Bench of the equal strength, which
is to prevail. In Hem Lata's case (supra),
the decision in JIK Industries Limited and
others (supra) is referred but there is no
discussion as to why the Court has chosen
to follow the law laid down in M/s Meters
and Instruments (supra) and not JIK
Industries Limited and others (supra). In
the cases of Suba Singh (supra) and Vikas
Jishtu (supra), the reliance has been placed
on M/s Meters and Instruments (supra)
alone and JIK Industries Limited and
others (supra) has not been referred to at
all.

13. In the case of "M/s Indo Swiss
Time Limited versus Umrao and others,
1981 AIR (Punjab and Haryana) 213", this
Court has held that when judgments of the
superior Court of co-equal Benches and
therefore, of matching authority then their
weight inevitably must be considered by the
rationale and the logic thereof and not by
the mere fortuitous circumstances of the
time and date on which they were rendered.
It is, thus, clear that when two directly
conflicting judgments of the superior Court
and of equal authority are extent then both
of them cannot be binding on the Courts
below. In such a situation, it is the plain
duty of the High Court in the interest of
justice to respectfully follow that which
appears to it to state the law accurately or,
in any case, more accurately than the other
conflicting judgments. Applying the said
principle to the present case, apparently,
the judgment in Anant Tools (Unit II) Pvt.
Ltd. and others (supra) lays down the law
more accurately than the judgments in the
cases of Hem Lata (supra), Suba Singh
(supra) and Vikas Jishtu (supra)."

7. It may be noted that the Punjab and
Haryana
High
Court
followed
the
observation as given in Anant Tools (Unit
No.II) Pvt. Ltd. And others versus M/s
Anant Tools Pvt. Ltd., Jalandhar, 2019(1)
RCR (Criminal) 137, in which the court
referred to the judgment of Supreme Court
in case of JIK Industries Limited and
others versus Amarlal vs. Jumnai and
another, 2012(1) RCR (Criminal) 822,
which mandated that the consent of the
complainant for compounding the offence
under Section 138 of the Negotiable
Instruments Act is must.

8. I studied both the judgments. The
Supreme Court did not say that the
requirement of consent for compounding
may just be done away with. Instead
widening the compensatory aspect of cases
filed under Section 138 of the Negotiable
Instrument Act, the Apex Court has carved
out a window in the existing scheme of
things saying that the case can be disposed
of without obtaining direct consent of the
complainant under certain circumstances.
The circumstances included offering an
amount fair and acceptable which in the
opinion of the court is appropriate for duly
compensating the complainant. That is
under certain circumstances the court can
proceed in absence of direct consent. The
court is empowered to apply its discretion
624 INDIAN LAW REPORTS ALLAHABAD SERIES
in terms of provisions of Section 258
Cr.P.C. It may be made clear that this
aspect of the matter is distinct and separate
from compounding of the case where both
the parties agree. The revisional court has
remanded the matter to decide it afresh as
per law laid down in M/s Meters and
Instruments Private Limited and Another
vs. Kanchan Mehta (supra). By the
aforesaid judgment the Apex Court has
emphasized that where an appropriate
amount has been offered/deposited, the trial
court may consider to drop the proceeding.
Definitely the objections, if any, in this
regard shall be taken into consideration The
court has not lost its power of discretion in
such matters. In view of the above I do not
find any cause for interference.

9. Accordingly, this criminal revision
is dismissed.
----------
(2023) 7 ILRA 624
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No.3839 of 2022

Smt. Deep Sharma & Anr. ...Revisionists
Versus
Smt. Binu Sharma & Ors. ...Respondents

Counsel for the Revisionists:
Sri Ishir Sripat, Sri Pramod Kumar, Sri
Rahul Sripat (Sr. Adv.)

Counsel for the Respondents:
G.A., Sri Kumwar Rajan, Sri Randhir Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision , The Protection of Women from
Domestic Violence Act, 2005 - Sections 12,
18, 19, 20, 21, 22, 23 & 29 - shared
household/rented accommodation.

(B) Criminal Law - The Protection of
Women from Domestic Violence Act, 2005
- Section 2(a),3 - aggrieved person -
respondent
must
not
only
stand
in
domestic relationship with the aggrieved
person but he should be one who has
subjected
the
aggrieved
person
to
domestic violence. (Para -14)

(C) Criminal Law - The Protection of
Women from Domestic Violence Act, 2005
- Chapter IV - kinds of orders which can
be passed against the 'respondent' -
Sections 18 to 22 - relief can only be
granted
against
the
respondent/respondents - any person who
is not a respondent or who is not found
involved in domestic violence, cannot be
brought within the purview of this Act -
courts cannot pass order against any
other person on the basis of perceived
threats or interference - If such a course
of action is allowed this shall set a very
dangerous
trend,
the
consequences
whereof cannot be foreseen.(Para-14)

Opposite party filed a complaint - against her
husband, father-in-law, mother-in-law, jeths,
and jethanis - under Section 12 of Protection of
Women from Domestic Violence Act - Trial court
found her guilty - appellant appealed -
appellate court partially allowed appeal -
modified relief under Section 19 and 20 -
dismissed rest - trial court affirmed the rest,
excluding mentioned portions - trial court found
- husband was responsible for domestic violence
against his wife - failed to prove allegations
against rest of family members - court granted
wife's right to stay in the shared household -
made a provision for alternative relief -
providing rent for separate accommodation -
Court seeks reasons for appellate court's
modification
of
shared
household/rented
accommodation order - appellate court ruled -
house/residence
in
question
falls
under
definition of a shared household - husband and
wife once lived together on ground floor - rest
of family members lived on upper floors - court
affirmed
that
no
domestic
violence
was