ORDER (Full Text)
1. Whether an offence under Section 138 of the Negotiable Instruments Act can be compounded after the confirmation of the conviction passed by the Magistrate Court, by the appellate court and High Court in revision? Whether an order passed by the High Court in a criminal revision petition confirming the conviction can be nullified by the High Court in petition filed under Section 482 of Cr.P.C noticing subsequent compromise of the case by the contesting parties? What is the effect of the non obstante clause 'notwithstanding anything contained in the Code of Criminal Procedure (Cr.P.C)' in Section 147 of the N.I. Act? These are the main questions to be considered in this case. In Sabu George v. Home Secretary (2007 (1) KLT 982), it was held by the learned Single Judge of this Court that offence under Section 138 can be compounded even after confirmation of the conviction by the High Court in revision and considering the subsequent facts of compromise, necessary relief can be given in a petition under Section 482 of the Cr.P.C. by this Court. Another learned single Judge of this Court expressed doubt about the correctness of the above decision and thus referred this matter to the Division Bench.
2. Before answering the reference, we shall consider the facts of this case. A cheque issued by the accused for an amount of Rs. 25,000/- was dishonoured for "insufficiency of funds" and he faced charges under Section 138 of the N.I. Act. After trial, he was convicted by the Magistrate Court and sentenced to undergo simple imprisonment for one year with a fine of Rs.5,000/-. His conviction was confirmed. In appeal but sentence was modified and he was sentenced to undergo simple imprisonment for three months. In revision application, this Court by order dated 23.3.2007, confirmed the conviction but sentence was modified to imprisonment till rising of the court and to pay a compensation of Rs. 25,000/- under Section 357(3) of Cr.P.C. Thereafter this petition was filed in May 2007 under Section 482 of the Code of Criminal procedure by the accused petitioner for the following reliefs;; (1) to accept the compounding application jointly filed by the parties and (2) to return the fine amount of Rs. 5,000/- already deposited before the Magistrate Court. In the joint petition by the parties (accused and complainant) prayer is as follows:
"In the above circumstances and in the interest of justice, this Honourable Court may be pleased to permit the petitioners to compound the offence and acquit the 1st petitioner".
Counsel for the petitioner relied on the decision of Sabu George (supra) for allowing the petition. But Learned Single Judge was of the opinion that order of conviction became final by the order of the High Court and hence he cannot be acquitted in a petition under Section 482 of Cr.P.C and doubted the correctness of the above decision with the following observation:
"The legal effect of allowing this petition by invoking the inherent power of this Court would be to efface the conviction entered and sentence passed by this Court in crl.R.P.667/2000 which in the normal course could have been interfered with only by the Supreme Court in appropriate proceedings Apart from the fact that the consequence which is sought to be avoided by the accused is not one flowing from the proceedings of an inferior court, the course now sought to be resorted to appears to be impermissible in the light of the decision of the Apex Court reported in Sankar Ramachandra Abhyankar v. Krishnaji Dattatraya Bapat (AIR 1970 S.C.1). More over, a reading of sub sections 4(a), 4(b), 5 and 6 of Section 320 Cr.P.C would indicate that compounding can be had only in a pending proceedings and with the permission or consent, as the case may be, of the court even if the offence is one compoundable without the permission of the Court. In the case of offences falling under sub-section (2) of Section 320 Cr.P.C the very fact that those offences can be compounded only with the permission of the Court would suggest that some proceedings should be pending before the Court when the request to compound the offences is made and entertained. A proceeding which has culminated in a final order cannot, in my view, be revived by filing a compounding petition".
3. In Sabu George's case, this Court has considered two petitions. In one case after confirmation of conviction by this Court in revision petition (Cr.R.P.No.7/2004), Crl.M.Ano.8626/2006 was filed for compounding the case. Later Crl.M.C.No.259/2007 was also filed under Section 482 of the Cr.P.C for compounding the case. In the next case after confirmation of the conviction under Section 138 of the N.I. Act, W.P(C).No.34540/2006 was filed to compound the case. Court granted following reliefs:
"31. In both these cases, I find that an amount of Rs.2,000/- is to be paid to the State as fine and in these circumstances the powers under S.482 Cr.P.C. can be invoked only subject to the condition that such amounts must be paid to the State by the respective petitioners. Such a stipulation shall ensure the interest of justice eminently.
32. To sum up, I take the view that in a case falling under S.320(1) Crl.P.C. where there has been a post revision composition of the offence by the victim/complainant, the jurisdiction under S.482 Cr.P.C (and of course Article 226/227 of the Constitution) is in law available with the High Court and in a fit case such powers can and ought to be invoked. The cases on hand are eminently fit cases where such jurisdiction ought to be invoked, I conclude.
33. In the result, W.P.(C).34540 of 2006 and Crl.M.C.259 of 2007 are allowed. It is directed that the sentences imposed on the petitioners shall not be executed on condition that the petitioners deposit an amount of Rs.2000/- each before the learned Magistrates concerned within a period of 45 days from this date. In dafault of payment of the said amount of Rs.2000/- each, they shall undergo the default sentence approved in the respective orders in revision.
34. Crl.M.A.No.8626 of 2006 in Crl.R.P.No.7 of 2004 is dismissed as unnecessary in view of the order in Crl.M.C.259 of 2007".
4. Before answering the reference, we may extract Section 320 of the Cr.P.C as well as Section 147 of the N.I. Act.
"S. 320: 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:
xxx xxx xxx
(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:-
xxx xxx xxx
(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.
(8) The composition o 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".
"S.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.
5. Section 147 of the N.I. Act was incorporated by Negotiable Instruments Amendment and Miscellaneous provisions) Act, 2002. The contention of the petitioner is that Section 147 of the N. I. Act enables the parties to compound the offence under this Act at any time and there is no bar in compounding the case after conviction is confirmed by the highest court. It is also stated that because of the non obstante clause used in the beginning of the Section, application of Criminal procedure Code is totally excluded. Therefore Sections 320 and 362 of Cr.P.C have to be ignored and once the matter is settled, on a petition under Section 482 of Cr.P.C by using inherent powers this Court can accept the compounding and nullify the conviction and sentence already passed by the Court and attained finality. It was also argued that even before Section 147 was enacted, parties had power to settle the offences under N.I. Act and compound the offence. For accepting the compounding petition by the court no proceedings need be pending before the court. Once the contesting parties have compromised the matter, in the absence of any prohibiting clause, court is bound to accept the same. It was further argued that though criminal in nature, complaint under Section 138 is a private dispute between the parties for a speedy recovery and dispute can be compromised at anytime whether before conviction and after conviction. But it cannot be stated that Section 138 was incorporated only as a means for speedy recovery of a civil dispute. Sections 138 to 142 was inserted by the banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988. The objects, reasons and preamble of the above Act show that apart from providing a speedy remedy, the object of bringing Section 138 on the statute appears to be to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments and it is essential for the economic development of the country as held by the Apex Court in M/s Electronics Trade and Technology Development Corporation Limited, Secunderabad v. M/s.Indian Technologists and Engineers (Electronics') Pvt. Ltd. and another (AIR 1996 SC 2339).
6. The expressions 'compromise' and 'compounding' are not synonyms in criminal jurisprudence even though these expressions are usually used without any distinction. Any disputes can be compromised between the parties if the terms are not illegal. But only a compoundable offence allowed by law can be compounded. A dispute relating to a crime can be compromised even before case is registered, and in that case, victim of the crime may refuse to file a complaint. But if inspite of compromise, if he files a complaint and court finds that what is compromised is compoundable offence, depending upon the facts and circumstances of each case magistrate can refuse to take cognizance, or acquit the accused as offence was compounded or the complaint can be quashed in a proceedings under Section 482. If an offence which is not compoundable under law is compromised, Magistrate can ignore the same and proceed with the crime. But once a crime is registered and court takes cognizance of the case, the offence can be compounded only as provided under Section 320 Cr.P.C, Offence under Table I can be compounded without previous permission of the court and Table II with previous permission. But it will have the effect of acquittal only when it is accepted by the concerned court. Section 320 only deals with compounding of offence pending either before the trial court or before the appellate court or revisional court. Compromise is defined in Black's Law Dictionary, Seventh Edition, as follows:
1. An agreement between two or more persons to settle matters in dispute between them.
2. A debtor's partial payment coupled with the creditor's promise not to claim the rest of the amount due or claimed".
In Stroud's Judicial Dictionary of words and phrases (Sixth Edition), compromise is defined as follows:
"Compromise: "Compromise', is a mutual promise of two or more parties there are at controversie" (Termes de la Ley).
"A compromise takes place when there is a question of doubt, and the parties agree not to try it out but to settle it between themselves by a give-and-take arrangement" (per Kay L.J. Huddersfield Bank v. Lister  2 Ch. 285).
"I understand 'compromise' [Legal Aid and Advice Act 1949 (c.51), s.1 (5)] to mean an agreement to settle an action or threatened action. It may be an agreement to apply for a consent judgment
Or it may be an agreement that the dispute shall be settled on certain terms
Or it may be an agreement to avoid a threatened action" (per Pearson]., Marshall v. Barnes and Fitzpatrick  1 AII E.R.970)".]
Compounding is defined in Black's Law Dictionary, Seventh Edition, as
"Compounding a crime:-
The offence of either agreeing not to prosecute a crime that one knows has been committed or agreeing to hamper the prosecution".
In the Law Lexicon, (3rd reprint Second Edition) of Sri.P.Ramanatha Aiyer, compounding is defined as follows:
"Compounding felony or offence: Compounding an offence is defined to be "the offence of taking a reward for forbearing to prosecute a felony; as where the party robbed takes his goods again, or other amends upon an agreement not to prosecute". (Burrill). See Criminal Procedure Code as to compoundable and non-compoundable offences".
Offences which are not mentioned in table of Sub sections 1 or 2 or Section 320 cannot be compounded and such compounding cannot be accepted by the court, though a compromise between the victim and accused may persuade the court to take a lenient view in the matter of sentence (See Bankat and another v. State of Maharashtra ((2005) 1 SCC 343).
7. In a compromise, consensus between the parties to give and take is more important and in a compounding, decision of the victim of offence not to prosecute and not to continue with prosecution is more important. But a mere decision not to prosecute the complaint and non filing of a criminal complaint by victim cannot be taken as compounding of the offence, even if such decision is taken on the basis of a compromise between the parties. Now offence under Section 324 IPC is non compoundable. If a victim of that offence refuses to file a complaint we cannot say that the offence is compoundable. But compounding cannot be equivalent to mere non prosecution of complaint and, in any event, once a person is convicted, compounding has to be permitted by the appellate court or revisional court, as the case may be, to have the effect of an acquittal of the accused. A criminal case instituted on the terms of private complaint may result in acquittal of the case if complainant party is not adducing any evidence but that is different from compounding an offence. In this case, crime was registered, trial was conducted and petitioner accused was convicted by the trial court. Conviction was confirmed by the appellate court and revisional court and the conviction became final. Then the real question before us is that after confirmation of conviction, whether compounding of the offence can be accepted and whether court can review the conviction on the basis of subsequent compromise and joint petition for compounding the offence? If it cannot be done after the disposal of the revision petition, can the same result be obtained by filing a petition under Section 482 of Cr.P.C or under Article 227 of the Constitution of India?
8. For answering the reference and for deciding the matter, we are bound to consider several points.
(1) Whether before insertion of Section 147 of the N.I. Act, offence under Section 138 was compoundable? It was pointed out by the petitioner that in M.Mohan Reddy v. Jairaj D. Bhale Rao and others (1996 Crl.L.J. 1010) (Andhra Pradesh High Court) and Naimesh P.Pandya v. State (1998 Crl..J. 4424) (Gujarat High Court) courts allowed compounding of the offence under Section 138 of N.I. Act before insertion of Section 147. The Karnataka High Court in M.Rangaswamaiah v. R.Shettappa (2002 Crl.L.J. 4792) held that in the absence of any prohibition in the Act or Cr.P.C, offence under Section 138 can be compounded. Court relied on the decision of the Apex Court in O.P.Dholakia v. State of Haryana ((2000) 1 SCC 762). But in that case it was not held by the Apex Court that offence under Section 138 is compoundable although the court accepted the compromise on the facts of the case by exercising powers of the Supreme Court, without creating a precedent. The above judgment is only a short judgment and concluding paragraph is as follows:
"3. Mr.Mahabir Singh, the learned counsel appearing for the State of Haryana however contends that the conviction and sentence having been upheld by all the three forums, this Court need not interfere with the same and it was open for the parties to enter into a compromise at an earlier stage when the appeal was pending. Now this Court need not show any indulgence. There is some force in the aforesaid contention. But taking into consideration the nature of offence in question and the fact that the complainant and the accused have already entered into a compromise, we think it appropriate to grant permission, in the peculiar facts and circumstances of the present case, to compound. Necessarily the conviction and sentence under Section 138 of the Act stands annulled. The special leave petition is disposed of accordingly".
It shows that it is a special order passed under the powers of the Supreme Court on the facts of that case and it will not be a binding precedent for the question that an offence can be permitted to be compounded even if it is not compoundable. As held by the Apex Court in Indian Bank v. ABS Marine Products Pvt. Ltd. (2006 AIR SCW 2156) relief given on special facts, exercising power under Article 142 is not a precedent.
9. Sections 4 and 5 of the Cr.P.C. reads as follows:
"S.4 Trial of offences under the Indian Penal Code and other laws:-
(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
S.5 Saving:- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force".
A reading of Sections 4 and 5 of Cr.P.C shows that for enquiry, investigation and trial of the offence, whether under I.P.C or any other Special Act, procedure under Cr.P.C has to be followed unless Special Act provides procedure. Offence is defined under Section 2(n) which is as follows:
S.2(n): "offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle-trespass Act, 1871(1 of 1871);
Admittedly for the trial of the offence under Section 138 except certain specific deviations made under Sections 140, 142 and 143 of the N.I. Act, the Criminal Procedure Code has to be followed. The complaint, appeal and revision petition are filed under the provisions of the Cr.P.C Sub Section (9) of Section 320 of Cr.P.C provides a specific bar to compound any offence except as provided by this Section. Therefore, not only I.P.C offence, any offence under Special Act also cannot be compounded except as specifically provided under Section 320. Hence before insertion of Section 147 of N.I. Act. offence under Section 138 was not compoundable. A Division Bench of this Court in Antony v. Sherafudin (1995 (2) KLT 386) considered the provisions of N.I. Act and Section 320 of Cr.P.C observed as follows:
"As there is specific provision in the Criminal Procedure Code for compounding offences enumerated in the tables under Ss.320(1) and (2) and as sub-section (9) makes the position crystal clear that no offence shall be compounded except as provided in the Section, any offence coming under a special enactment cannot be compounded under the provisions of the Code. In a case where a special enactment provides for compounding of offences it can certainly be done, if not, it cannot be done. S.138 of the Negotiable Instruments Act does not provide for compounding of the offence. So long as there is no specific provision for compounding of the offence under S.138 of the Negotiable Instruments Act the offence cannot be compounded by invoking S.320 Cr.P.C".
We respectfully follow the above judgment, disagree with the view expressed in the decisions mentioned above, that even before Section 147 was inserted in the N.I. Act, offence under that Act was compoundable. In fact only because offences under N.I. Act are not compoundable without a specific clause in the special enactment Section 147 was enacted by the Parliament.
10. Whether offences under N.I. Act committed prior to the insertion of Section 147 of N.I. Act were compoundable? Since bar under Section 320 of Cr.P.C is lifted by insertion of Section 147 with respect of offences under the N.I. Act, it can be considered applicable to all pending proceedings. No new penalties are prescribed. In such cases pending cases are governed by the amended provisions. None of the rights of the parties are taken away but it confers additional rights to the parties and no prejudice is caused. The provisions incorporated by amendment has to be construed from the points of view of the mischief the new provisions seeks to remedy and the manner in which it is to be remedied (See Ajith Kumar v. State (1961 (2) Crl.L.J. 617) (Calcutta F.B.). But if right of compounding is taken away it may be possible to argue that since prejudice is caused, amendment shall be prospective. We are not considering that aspect here. But here no prejudice is caused by making Section 147 applicable to pending proceeding's. It will not affect concluded matters but all pending cases under Section 138 can be compounded especially considering the objects of the Act. In this connection we refer to the observations of the Honourable Supreme Court in Dhannalal v. D.P.Vijayavargiya and others ((1996) 4 SCC 652) and New India Assurance Co. Ltd v. C.Padma and another (AIR 2003 SC 4394) with regard to issue regarding deletion of Section 166(3) of the Act prescribing limitations of filing claim petitions under the Motor Vehicles Act Honourable Apex Court found that the benefit of amendment is applicable to all pending cases. In Dhannalal's case (supra) it was held as follows:
"From the amending Act it does not appear that the said sub-section (3) has been deleted retrospectively. But at the same time, there is nothing in the amending Act to show that benefit of deletion of sub-section (3) of Section 166 is not to be extended to pending claim petitions where a plea of limitation has been raised. The effect of deletion of sub-section (3) from Section 166 of the Act can be tested by an illustration. Suppose an accident has taken place two years before 14.11.1994 when sub-section (3) was omitted from Section 166. For one reason or the other no claim petition had been filed by the victim or the heirs of the victim till 14.11.1994. Can a claim petition be not filed after 14.11.1994 in respect of such accident? Whether a claim petition filed after 14.11.1994 can be rejected by the Tribunal on the ground of limitation saying that the period of twelve months which had been prescribed when sub-section (3) of Section 166 was in force having expired the right to prefer the claim petition had been extinguished and shall not be revived after deletion of sub-section (3) of Section 166 with effect from 14.11.1994? According to us, the answer should be negative".
It was also held that benefit of the above provision is applicable to all pending cases before the tribunal or the High Court or the Supreme Court. But in paragraph 8 it was held as follows:
8. The matter will be different if any claimant having filed a petition for claim beyond time which has been rejected by the Tribunal or the High Court, the claimant does not challenge the same and allows the said judicial order to become final. The aforesaid amending Act shall be of no help to such claimant".
Offences punishable under N.I. Act are made compoundable by insertion of Section 147 by the Negotiable Instruments Ame4ndemnt and Miscellaneous Provisions Act, 2002. It is a beneficial provision and it is applicable for all cases pending trial appeal and revision even if the offence is committed before the amendment. But is not applicable to concluded matters.
11. What is the effect of non obstante clause in Section 147 of N.I. Act and whether the court has to ignore entire Cr.P.C including Section 320 while dealing with a compounding petition? It is true that Section 147 of N.I. Act starts with the non obstante clause "notwithstanding anything contained in the Code of Criminal procedure 1973". Such clauses are added with a view to give an overriding effect over the provision or Act mentioned in the non obstante clause in case of conflict, the provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non obstante clause will not be an impediment for the operation of the Section (See South India Corporation (P) Ltd v. Secretary, Board of Revenue, Trivandrum and another (AIR 1964 SC 207)). A non obstante clause maybe used as a legislative device to modify the ambit of the provision or law mentioned in the non obstante clause or to override it in specified circumstances (See Pannalal Bansilar Patil and others v. State of Andhra Pradesh and another (AIR 1996 SC 1023). In A.G.Varadarajulu v. State of Tamil Nadu (AIR 1998 SC 1388)). Apex Court held that even though the notwithstanding clause is very widely worded, its scope may be restricted by construction having regard to the intention to the Legislature gathered from the enacting clause or other related provisions in the Act. This may be particularly so when the notwithstanding clause "does not refer to any particular provision which it intends to override but refers to the provisions of the statute generally". Thus the notwithstanding clause in Section 21A of the Tamil Nadu Land Reforms (Fixation of Ceiling of Land) Act, 1961 which reads 'notwithstanding anything contained in Section 22 or in any other provision of this Act and in any other law for the time being in force' was construed not to override the definition of 'stridhana land' in Section 3(42). In ICICI Bank Ltd v. SIDCO Leather Ltd & others (2006 AIR SCW 2361) it was held as follows:
38. The non-obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy. Only because the dues of the workmen and the debt due to the secured creditors are treated pari passu with each other, the same by itself, in our considered view, would not lead to the conclusion that the concept of inter se priorities amongst the secured creditors had thereby been intended to be given a total go-by.
39. A non-obstante must be given effect to, to the extent the Parliament intended and not beyond the same".
But non obstante clause can have a wide meaning also considering the object of certain legislations as held in V.C.Shukla v. State through C.B.I. (AIR 1980 SC 962). Therefore 'non obstante clause' has to be considered in the circumstances of each case. We have already seen that offences punishable under the N.I. Act were not compoundable before Section 147 was inserted in the year 2000. Section 147 only provides that notwithstanding the provisions of Cr.P.C against compounding of the offences other than those specifically mentioned in Section 320(1) and (2), offences under the N.I. Act can also be compounded. The words 'not withstanding the provisions of the Cr.P.C' only means notwithstanding the prohibition against compounding the offences other than coming under Tables annexed to Sections 320(1) and (2), offences under N.I.A also can be compounded. But the non obstante clause mentioned in the beginning of the Section will not completely exclude application of Cr.P.C to offences under the N.I.Act. In this context, we refer to the decision of the Supreme Court in Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) and others v. K.Devi and others ((1996) 4 SCC 76) wherein meaning of such clause are explained as follows:
"It is equivalent to saying that in spite of the provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provision indicated in the non obstante clause will not be an impediment for the operation of the enactment".
12. If Section 320 is completely not applicable, there is no procedure prescribed for acceptance of the compounding by the Court resulting in acquittal of the accused at the stage of trial or appeal or in revision either under Cr.P.C or N.I. Act. If Section 320 is not applicable and entire Section 320 is excluded even if parties have compounded, it will not have the effect of acquittal as provided under Section 320 and if he is convicted and sentenced, he has to undergo sentence on the basis of the conviction entered notwithstanding the subsequent compounding or compromising of the offence. The learned Judge in Sabu George's case (supra) at paragraph 10 held as follows:
"When no special procedure is prescribed under any special law, the procedure prescribed under the Cr.P.C has to be followed of investigation, enquiry, trial or otherwise dealing with such situations. If there is a specific provision contra in any such special law the provisions of the Code shall not apply. About the procedure for composition and its consequences we have stipulations in the Code. There is no provision in the N.I. Act also. Therefore, S.4 of the Cr.P.C must apply and S.5 cannot apply while considering the procedure to be followed for effecting a composition of the offence under Section 138 of the N.I. Act as permitted under S.147 of the N.I. Act. Any different understanding of the non obstante clause in S.147 will leave the courts without any known or specified procedure to be followed while considering the acceptance of the composition. The non obstante clause in S.147 means only this, I,e.
"An offence under S.138 of the N.I. Act may not be compoundable under S.320 of the Code. That provision as it stands may apply only to specified offences under the I.P.C. But it is stipulated hereby that the offence under S.138 shall also be reckoned as a compoundable offence under the Code i.e, under S.320 Cr.P.C".
We agree with the learned single Judge in that aspect and hold that procedure under Section 320 of Cr.P.C should be followed while compounding an offence under N.I. Act not withstanding the non obstante clause in Section 147 and the above clause only removes the prohibition in Cr.P.C against compounding offences not mentioned in the tables in Section 320(1) and (2).
13. Next question is whether permission from the court is required to compound the offence under N.I. Act? Table in Sub Section (1) of Section 320 describes offences which can be compounded without permission from the court. Table annexed to Sub Section (2) describes offences which can be compounded only with the permission of the Court. There is no indication in the N.I. Act that to avail the benefits of Section 147, permission from the Court is necessary to compound the case. Therefore offence under the N.I. Act can be compounded in par with the offences mentioned in Table I in Section 320(1) without Permission from the Court. Hence to that effect we fully endorse the above view of the learned Single Judge in Sabu George's case (supra).
14. Can the offence under N.I. Act or offence punishable under Table I of Section 320 be compounded after conviction, when the appeal or revision is pending? We have already seen that offence under the N.I. Act comes in par with offences mentioned in the table I of Section 320(1). Such offence is compoundable when the trial is pending, without permission from court. Therefore if such offences are compounded by the parties, the trial court is bound to accept the compounding. The trial court need only look into whether a genuine compromise was entered into and the compounding petition is filed accordingly. The resultant consequence is the effect of an acquittal of the accused. Sub Section (8) of 320 provides that the compounding of the offence under this section shall have the effect of an acquittal of the accused. It is not equivalent to discharge but acquittal and for the same offence, he cannot be again prosecuted in view of Section 300 of Cr.P.C and Article 20(2) of the Constitution of India. If the parties have compounded the offence, before the court taking cognizance, court can consider the same and if the offence alleged is compoundable under Section 320, the F.I.R or complaint, as the case may be, can be quashed as a fit case in a petition under Section 482, if the court is satisfied that the offence was compounded. Hence offences can be compounded even before taking cognizance of the offence by the Magistrate and we are with full agreement with observations of the learned Single Judge in paragraph 13, which is reproduced below.
13. If the offence is compoundable under Section 320(1) and the parties have compounded the offence, the police must be bound to accept the same and drop further action and make report of the same to the Magistrate concerned. If the police do not, it must be possible for the parties to approach the learned Magistrate or this Court under Section 482 Cr.P.C. I therefore agree that composition of an offence under Section 320(1) can be effected even before cognizance of the offence is taken by the Magistrate.
But there is no provision for compounding the offence after conviction without permission of or intervention from the court, whether the offence is compoundable, with or without permissible as classified under Table I or Table II. This is because the compounding will have the effect of an acquittal and setting aside of conviction. Conviction, in the absence of appeal or revision, becomes a concluded matter. Sub clauses 5 and 6 of Section 320 allows the compounding of offence after conviction, if appeal or revision is pending by the permission of the appellate court or revisional court as the case may be. If the case is committed for trial also, leave of the committal court is necessary for compounding.
15. Once High Court confirms the conviction in revision, it cannot be interfered with by the High Court in view of the subsequent compounding out of court. There is no provision under Section 320 or any in the N.I. Act enabling the court to accept or permit the compounding after conviction has become final and no appeal or revision is pending against the conviction. In P.Damodaran and others v. state (1993 Crl.L.J. 404) this Court held as follows:
"3. The question that arises for consideration is as to whether compounding of offences could be done when conviction and sentence against the accused have become final. Admittedly the conviction and sentence entered against the accused have become final in view of the dismissal of Crl.R.694 of 1991. As the conviction and sentence entered against the accused have become final, this Court cannot have any jurisdiction to compound the offences even if both parties to the dispute agree for such a course of action".
"5. Compounding of offences can be done when the case is pending before the trial Court or the appellate Court or the revisional Court. Section 320(5) provides that when an accused has been convicted and an appeal is pending no composition of the offence shall be allowed without the leave of the Court before which the appeal is to be heard. Section 320(6) enables compounding of offences even during the revisional stage".
Finally it was held as follows:
"Though compounding of offences can be done during the pendency of the revision before the High Court, it cannot be done at any time after the revision petition has been disposed of. Section 320(6) states that the 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. This would clearly indicate that after disposal of the Criminal Revision Petition the Court becomes function officio (sic functus officio) to allow the request of the parties for compounding of the offences".
16. Section 362 of Cr.P.C prohibits the court after it has signed its judgment and final order is passed from altering or reviewing the same except to correct a clerical or arithmetical error. In Tanveer Aquil v. State of Madhya Pradesh and another (1990 (Supp) SCC 63) considered the issue. In that case, in appeal, court confirmed the conviction. After judgment was pronounced, parties compromised the matter and filed a petition to compound the matter. It was dismissed as High Court cannot entertain such a petition in view of the bar under Section 362. Apex Court confirmed the same as one judgment is pronounced, High Court has no jurisdiction to entertain an application for grant of permission to compound the offence. In such case proper case is to file appeal or SLP as the case may be and get necessary relief from the Supreme Court. In State of Kerala v. M.M.Manikantan Nair (2001 (3) KLT 80 (SC): (AIR 2001 SC 2145) Apex Court observed as follows:
The Code of Criminal procedure does not authorize the High Court to review its judgment or Order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the court after it has signed its judgment or Order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed. By the first Order, dated 31st May, 2000, the High Court rejected the prayer of the respondent for quashing the criminal proceeding. This order attained its finality. By the impugned Order, the High Court reversed its earlier Order and quashed the criminal proceeding for want of proper sanction. By no stretch of imagination it can be said that by the impugned order the High Court only corrected any clerical or arithmetical error. In fact the impugned Order is an Order of review, as the earlier Order was reversed, which could not have been done as there is no such provision under the Code of Criminal procedure, but there is an interdict against it.
This Court in Hari Singh Mann v. Habrhajan Singh Bajwa & Others (2001 (1) SCC 169), held that Section 362 of the Criminal Procedure Code mandates that no Court, when it has signed its judgment or final Order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error and that this section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by the Court of competent jurisdiction".
Once the order of conviction is confirmed in revision, the revisional court cannot review or alter the conviction in view of the specific bar under Section 362. The above statutory bar of review cannot be over-reached by filing clarification petition, modification petition or a petition under Section 482 or by resorting to any other innovative methods. Mandate of Section 362 has to be obeyed in letter and spirit.
17. Can the High Court reverse, alter or modify the conviction which became final by its own order passed in a revision petition, by using power under Section 482 of the Cr.P.C which ultimately may amount to cancellation of conviction and sentence taking note of subsequent events like compounding of the case? We are of the opinion that inherent powers cannot be used to defeat the specific procedure prescribed in Cr.P.C. It is not device to over come the specific bar under Section 326. After analyzing various case laws also Apex Court relied. Central Bureau of investigation v. Ravi Shankar Srivastava, IAS and another (2006 AIR SCW 3990) powers of the High Court under Section 482 as follows:
"exercise of power under Section 482 of the Code in a case on this nature is the exception and not rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist".
Restored powers of the High Court under Section 482 as follows:
The learned judge in Sabu George's case (supra) relied on an observation of the Supreme Court in Mostt. Simrikhia v. Smt.Dolley Mukherjee alias Chhabi Mukherjee and another (1990 Crl.L.J. 1599) for holding that Section 482 can be used to review the effect of an order if there is change in circumstances, Facts of that case are described in paragraph 1 of the above Apex Court judgment is as follows:
"In a case instituted on a private complaint by the appellant for offences under Sections 452 and 323, IPC, the Judicial Magistrate First Class, Patna, in exercise of power under section 192(2), Cr.P.C transferred the case for enquiry under Section 202 of the Code. The Court of the Second Class Magistrate, after examining witnesses, by order dated 22.3.1985 issued process to the two accused the respondents herein. The order of the Magistrate issuing process was challenged by the respondents under Section 482 before the High Court. The main ground urged before the High Court was that the First Class Magistrate had transferred the case without taking cognizance of the offence and the subsequent proceedings were, therefore, illegal. The High Court, by its order dated 20.8.1988, dismissed the petition. It was found that there was no such illegality. The respondents again made Crl.Misc. petition No.2314/89 under S.482, Cr.P.C before the High Court alleging, inter alia, that the record of the proceedings on close scrutiny would indicate that the case had not been taken cognizance of before the transfer. The learned Single judge accepted the case of the respondents and quashed the proceedings by the impugned order".
The Apex Court considered the powers under Sections 482 and 362 and observed as follows:
"The inherent power under Section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the fact by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision".
Therefore it was further observed as follows:
"If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there is no such changes circumstances and the decision has to be arrived at a on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362".
"If a matter is covered by an express letter of law, the court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction".
Finally after discussions and verdict and ratio decidendi of the case is stated in paragraph 6 of the judgment which is as follows:
"6. The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362. It is clearly stated in Sooraj Devi v. Pyare Lal ((1981) 1 SCC 500: (1981 Crl.L.J. 296) that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of bar under other provisions of the Code. The Court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High court has grievously erred in doing so. Even on merits, we don't find any compelling reasons to quash the proceedings at that stage".
With the above findings appeal was allowed setting aside the order of the High Court. With great respect, we are of the opinion that a sentence in a judgment cannot be taken out from the context and used for laying down the preposition that if there is change in circumstances, by using inherent powers under Section 482 express bar under Section 362 can be got over. Learned single Judge in Sabu George's case (supra) was of the opinion that the above observations of the Supreme Court enable the High Court in effect, to set aside the conviction which is confirmed by its own order, taking note of subsequent compounding of the offence and at paragraph 26 it was observed as follows:
26. In the instant cases, when the revision petition was disposed of by this Court, this circumstance that the parties settled the dispute and the complainant compounded the offence was not there at all. It is a subsequent change in circumstance. The decision in Mostt. Simrikhia (supra) squarely applies. That was a case where an earlier application under Section 482 Cr.P.C was dismissed, but still the Supreme Court held that a change in circumstances is sufficient to justify the invocation of the powers afresh under Section 482 Cr.P.C notwithstanding the bar under Section 362 Cr.P.C. In the instant case, the powers under Section 482 Cr.P.C have not been sought to be invoked earlier. Only the revisional powers were exercised. That is all the more the reason why under the changed circumstances the extra ordinary inherent jurisdiction under Section 482 Cr.P.C can be invoked. In the light of the dictum in Mostt. Simrikhia earlier decisions rendered and subsequent decisions, which do not refer to the said decision specifically and in which the opinion is expressed that the powers under Section 482 Cr.P.C cannot be invoked after disposal of the revision in view of the bar under Section 362, cannot be held to lay down the law correctly".
We are unable to accept the above view expressed in Sabu George's case, as in our opinion, no such conclusion can be made on relying on the decision of the Apex Court in Mostt. Simrikhia's case (supra).
18. It is true that in Kirpal Pratapsingh Ori v. Balvinder Kaur Hardipsingh Lobana and another (2004 Crl.L.J. 3786) a learned Single Judge of Gujarat High Court also held that even after dismissal of revision petition, inherent powers under Section 482 can be used for accepting compromise between the parties since N.I. Act is a special law and Section 320 is not applicable. Very same learned Single Judge who decided Kirpalsingh's case (supra) took a slightly different view in Rameshbhai Somabhai Patel v. Dineshbhai Achalanand Rahti an another (2005 Crl.L.J. 431). In that case at paragraph 10, it was held that offences under N.I. Act can be considered compoundable like offences in Table I of Section 320 without prior permission and compounding can be accepted in a revision petition by the court and revision petitioner can be acquitted. Relying on the decision of the Supreme Court in State of Orissa v. Ram Chander Agrawal (AIR 1979 SC 87). Allahabad High Court in Chhotey Singh v. State of U.P. (1980 Crl.L.J. 583) held that an application for compounding the offence must be made in a pending proceeding. Therefore, an application for compounding offence filed after the conviction has become final, cannot be entertained. Once the appeal or revision has been finally disposed of by the High Court, there remains nothing pending. Further, if such an application is allowed, it will result in setting aside the judgment of the High Court. It cannot be done in view of express bar under Section 362, which permits correction in the judgment in respect of clerical or arithmetical errors only. In Moti Lal v. State of M.P. (AIR 1994 SC 1544), Apex Court considered a similar matter. In that case 15 accused were punished for various offences under Sections 302, 325 etc, read with Section 149 of IPC. Three persons were convicted. In appeal High Court acquitted two persons and remaining accused were convicted under Section 304 Part I of IPC without the aid of Section 149 or Section 34. Later an application was filed before the High Court under Section 482, Cr.P.C with the prayer that the conviction under Section 304 Part I, I.P.C was patently wrong since the injury said to have been caused by the appellant was not serious and necessarily not fatal. The High Court exercising jurisdiction under Section 482, Cr.P.C accepted the plea and altered the conviction to Section 324, IPC and sentenced the appellant to 3 years R1 and to pay a fine of Rs.1,000/- in default of payment of which to undergo R1 for four months. Not being satisfied with that, the appellant preferred as special leave petition to the Supreme Court along with a prayer seeking permission to get the offence compounded. Apex Court found that High Court erred in altering the conviction exercising jurisdiction under Section 482 and held as follows:
"2. Section 362, Cr.P.C in clear terms lays down that the Court cannot alter judgment after the same has been signed except to correct clerical of arithmetical errors. That being the position the High Court had no jurisdiction under Section 482, Cr.P.C to alter the earlier judgment".
Thereafter appeal from the main judgment was considered on merits and conviction under Section 304 Part I was altered to conviction under Section 326 and sentence was reduced. Section 482 also cannot be invoked against the clear mandate of Sections 320 and 362. We are of the view that decision of the Apex Court in Mohd. Yaseen v. State of U.P. ((2007) 7 SCC 49) provides a complete answer to the question. In that case Honorable Supreme Court was considering two connected appeals. The appellant was convicted for an offence punishable under Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954. The learned judicial Magistrate (Economic Offences), Bareilly, found the accused guilty and convicted him and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.2000/- with default stipulation. Conviction and sentence were confirmed in appeal. When revision petition was posted for hearing, the advocate who was appearing in the case reported 'no instructions'. Thereafter court considered the matter on merit and revision petition was dismissed. After revision petition was dismissed, a petition was filed under Section 482 to recall the order. It was submitted that name of the advocate of the petitioner was not printed in the cause list and also submitted that he produced a certificate before the appellate court that his age was below 18 years and hence he is entitled to benefit of Section 20AA of the Food Adulteration Act and since this was not considered at all when the matter was disposed of without hearing the advocate and hence in the interest of justice and to avoid multiplicity of the case, matter shall be reconsidered in a petition under Section 482. The High Court rejected the appeal in view of special bar under Section 362. Apex Court agreed with the above view as order in criminal revision cannot be reviewed or altered in a petition under Section 482 though it will have avoided multiplicity of proceedings. Apex Court held as follows:
"In State of Orissa v. Ram Chander Agarwala ((1979) 2 SCC 305 at page 315) it was noted in para 20 as follows:
"This decision instead of supporting the respondent clearly lays down following U.J.S. Chopra v. State of Bombay (AIR 1955 SC 633) that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction
. The provisions of Section 561-A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code".
In Hari Singh Mann v. Harbhajan Singh Bajwa ((2001) 1 SCC 169 at page 175) the position was reiterated in paragraph 10 as follows:
"10. Section 362 of the Code mandates that no court, when it has signed its judgment or final order disposing of a case shall alter or review the same to correct a clerical or an arithmetical error. The section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error".
Therefore, the High Court rightly observed that the application under Section 482 of the Code is to be dismissed".
After dismissing the appeal filed against order dismissing petition was filed under Section 482 by the High Court. But the Apex Court considered the appeal filed against order passed on merits in revision and allowed the same and remanded the matter to the trial court for verifying the documents produced. Therefore here also it is for the parties to move the Supreme Court and submit that they have compromised the case. Only Supreme Court can change the order passed by the High Court in revision.
19. After considering Section 147 of the N.I. Act, Bombay High Court has recently held in Prakash B.Borkar v. Sukhalal Kumar & Another (2007 (2) KLJ 9) that cloak of Section 482 of the Cr.P.C and the practice of filing miscellaneous petitions after disposal of the main case is unwarranted. Inherent powers cannot be used so as to review the judgment and also opined that it is for the parties to approach the Supreme Court. We respectively agree with the above decision. We hold that order passed in the revision which has become final cannot be altered by invoking Section 482 even if the matter is subsequently compromised between the parties or complainant wants to withdraw the complaint. By using inherent powers, court cannot violate the written provisions of the Code. If the offence is compounded, virtue of Section 320(8) will amount to acquittal and in view of Section 326, conviction confirmed by the High Court in revision cannot be modified by a proceedings under Section 482.
20. It was submitted that in Sabu Geroge's case, there is another serious error in so far court imposed fine even after the composition was accepted and provided also for default sentence if fine is not paid. We have already quoted paragraphs 31 to 33 of the above decision in paragraph 3 of this order. We have already seen that in view of Section 320(8), effect of compounding is that of the acquittal of the accused. Once the compounding is accepted by the court, court cannot impose any sentence. Imposition of fine and ordering imprisonment in default of payment of fine, after acquitting the accused is foreign to criminal law. After acquitting a person he cannot be sentenced either with imprisonment or fine. That is not possible. Inherent jurisdiction cannot be used for sentencing a person by imposing a fine even after acquitting him, bye passing the statutory provisions. Justice can be administered only according to law. Imposition of fine is different from imposition of cost or compensation. We are of the opinion that, once the compounding is permitted, it will have the effect of an acquittal and no further imposition of fine or any type of sentence can be passed in view of Section 320(8).
21. The learned Public prosecutor pointed out that the very same learned Judge subsequently in Abdul Latheef v. Thankamma Micheal and Another (2007 (4) KHC 269) held that Sabu George's case is not an authority for the proposition that all post-revision compositions an be accepted invoking powers under Section 482 Cr.P.C and explained Sabu George's case as follows:
"What remains is only the substantive sentence of imprisonment till rising of Court. Sabu George v. Home Secretary, 2007 (1) KLT 982 is not authority for the proposition that all post-revision composition can be accepted invoking the powers under Section 482 Cr.P.C. That was an exceptional case where the accused would have been compelled to undergo incarceration for long period of time inspite of the settlement".
We are of the view that even if relief under Section 482 is a discretionary, judicial discretion cannot be exercised to discriminate between person to person. It must be applicable to all similarly situated persons. Mere delay or inconvenience in approaching Supreme Court is not a ground for invoking jurisdiction under Section 482. In view of the above reasons, we overrule the decision of Sabu George's case so long as it holds that Section 482 can be invoked for accepting compounding of the offence under N.I. Act after the conviction is confirmed in a revision by the High Court.
22. In K.Kandasamy and another v. K.P.M.V.P.Chandrasekharan (2005 AIR SCW 2460) Honourable Supreme Court in a pending matter accepted compounding of the offence after confirmation of the same by revisional court. In Sailesh Shyam Parsekar v. Baban Alias Vishwanath S.Godge and another (2005 AIR SCW 3358), Apex Court allowed the compounding of offence under Section 138 of the N.I. Act when first application was filed in the appeal and conviction and sentence passed by the revisional court was set aside. This order will not prevent the petitioners to approach the Honourable Supreme Court in appropriate proceedings if the offence is compounded, if so advised. Operative part of the revisional order in this case is as follows:
"In the circumstances, the sentence is modified to imprisonment till the rising of the court and to pay a compensation of Rs. 25,000/- vide Section 357(3) Cr.P.C and in default to undergo simple imprisonment for three months. The revision petitioner shall appear before the Judicial Magistrate of First Class, Nadapuram on 24.4.2007 to receive sentence".
As found in Abdul Latheef's case (supra) the direction in the revisional order is to pay the compensation and not to deposit the compensation. Therefore if the amount is paid to the complainant there is no question of the petitioner undergoing default sentence. In this case as seen from joint petition entire amount ordered as compensation is paid. The remaining part is only the appearance of the petitioner before the Magistrate Court, and undergo imprisonment till the rising of the court. Since there was the stay of execution of judgment, petitioner is allowed to appear before the Magistrate court on or before 24.1.2008 to receive the remaining part of the sentence if he chooses to do so. Hence this Criminal M.C. is dismissed with the above observations.