Mr. Deepak Maheshwari, J. - Heard learned counsel for the petitioner as also learned counsel appearing for the respondent No. 2 and learned
Public Prosecutor.
2. By way of this criminal misc. petition, a prayer has been made on behalf of the accused petitioner to quash and set aside the order dated
07.12.2015 passed by Addl. District & Sessions Judge No. 4, Jaipur Metropolitan by which the application filed by the petitioner under Section
147 NI Act has been rejected. Prayer has also been sought to pass an order for compounding of the offence on payment of compensation held by
the trial Court.
3. On perusal of the documents annexed with the petition as also from the facts narrated during arguments, it comes out that the learned trial Court
held the accused petitioner guilty vide judgment dated 21.2.2014 for the offence punishable under Section 138 NI Act and awarded sentence of
simple imprisonment for two years along with compensation of Rs.6,00,000/- to be paid to the complainant.
4. Against the said order, appeal has been preferred by the accused petitioner. During the pendency of the appeal, an application has been filed by
the petitioner under Section 147 NI Act, which was vehemently opposed by the complainant saying that she is not at all ready and willing to
compound the offence. After considering the judgments cited by both the parties, learned trial Court rejected the said application vide impugned
order dated 7.12.2015 on the ground that the complainant is not ready and willing to compound the offence.
5. The petitioner has preferred this misc. petition against the said order.
6. During the course of arguments, learned counsel for the petitioner has referred to the judgment given by Hon''ble Supreme Court in case of
Damodar S. Prabhu v. Sayed Babalal H., reported in 2010 (1) WLC p.745 whereby some guidelines have been laid for allowing the
compounding the offence under the NI Act. It has also been laid down that the compounding of the said offence can be made even at the stage of
revision and the appeal. Learned counsel for the petitioner has also referred to the judgment given in Ashok Kumar v. State of Raj. & Anr.,
reported in 2016 (1) WLC (Raj.) UC p.615 wherein the criminal revision preferred by the complainant against the order of giving the benefits
under the Probation of Offenders Act after deposition of the amount by the accused in compliance of the order passed in misc. petition was
rejected.
7. Per contra, learned counsel for the complainant/respondent No. 2 has referred to the judgment in case of Phool Chand Saraogi v. State of
Raj. & Anr., reported in 2008 (2) Cr.L.R. (Raj.) p.1506 wherein it has been specifically laid down that though the offence under Section 138
NI Act is compoundable as per Section 147 of the Act but when the complainant is not willing to compromise the matter, it cannot be said that the
matter stands compounded. He has also referred to the judgment in JIK Industries Limited & Ors. v. Amarlal V. Jumani & Anr., reported
in AIR 2012 SC p.1079. Relevant part of the said judgment from para 73 can be produced as below :-
... ... ... There is no other statutory procedure for compounding of offence under N.I. Act. Therefore, Section 147 of the N.I. Act must be
reasonably construed to mean that as a result of the said Section the offences under N.I. Act are made compoundable, but the main principle of
such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same
be substituted by virtue of Section 147 of N.I. Act ... ... ...
8. Having considered the rival contentions and after going through the judgments cited by both the sides, this Court is of the view that the
complainant/respondent No. 2 is not at all ready and willing to compound the offence punishable under Section 138 NI Act. Observing this fact,
the appellate Court has rejected the application filed under Section 147 NI Act vide impugned order dated 7.12.2015. Taking the principles laid
down in JIK Industries Limited''s case (supra), it is clear that unless the complainant is ready and willing to compound the offence, it cannot be
allowed to be compounded notwithstanding the provisions contained in Section 147 NI Act. Section 147 of the Act only permits the compounding
of such offence but there is no such intention of the legislature to compel the complainant to get the offence compounded if the accused is ready
and willing to deposit the amount of cheque.
9. It is evidently clear in the matter in the hand that the complainant/respondent No. 2 is not ready and willing to compound the offence. The
impugned order dated 7.12.2015 has been passed by the appellate Court on account of this fact, in which no infirmity is found. Hence, this misc.
petition, challenging the order dated 07.12.2015, being devoid of any force, cannot be allowed and the same is hereby dismissed.