M/s Anant Tools (Unit No. II) Pvt. Ltd. and others vs M/s Anant Tools Pvt. Ltd., Jalandhar

Date of Decision:20.09.2018

1. CRM-M-17300 of 2017 (O&M)

M/s Anant Tools (Unit No.II) Pvt. Ltd. and others .....Petitioners Vs. M/s Anant Tools Pvt. Ltd., Jalandhar .....Respondent

2. CRM-M-17352 of 2017 (O&M)

M/s Anant Tools (Unit No.II) Pvt. Ltd. and others ....Petitioners Vs. Swatantar Kumar Chopra .....Respondent

3. CRM-M-17353 of 2017 (O&M)

M/s Anant Tools (Unit No.II) Pvt. Ltd. and others .....Petitioners Vs. M/s Anant Tools Pvt. Ltd., Jalandhar .....Respondent

CORAM:- HON'BLE MR. JUSTICE RAJBIR SEHRAWAT

Present:- Mr. M.L. Saggar, Senior Advocate with Mr. Abhilaksh Grover, Advocate for the petitioners.

Mr. Vikram Chaudhri, Senior Advocate with Ms. Ishal Goyal, Advocate for the respondents.

**** Rajbir Sehrawat, J.(Oral)

This order shall dispose of three petitions i.e. CRM-M-17300

of 2017 - M/s Anant Tools (Unit No.II) Pvt. Ltd. and others Vs. Anant Tools

Pvt. Ltd., Jalandhar, CRM-M-17352 of 2017 - M/s Anant Tools (Unit No.II)

Pvt. Ltd. and others Vs.Swatantar Kumar Chopra and CRM-M-17353 of

2017 - M/s Anant Tools (Unit No.II) Pvt. Ltd. and others Vs. Anant Tools

Pvt. Ltd., Jalandhar, involving identical facts, but involving different

cheques, and thus resulting in three different complaints and three different

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proceedings.

Broadly outlined, the facts of this case are that the respondent -

M/s Anant Tools Pvt. Limited filed complaint against the present petitioners,

which is, incidentally, having a little bit similar name, i.e. M/s Anant Tools

(Unit No.II) Pvt. Limited, and its Directors. The allegations in the

complaint are that earlier the complainant and the accused had common

business and were initially running a joint business. However, thereafter,

the business was separated by the two. As a result, the assets, rights and

liabilities were divided between the parties. An amount of Rs.18,52,253/-

was required to be paid by the accused No.1 to the complainant, as a result

of the above said settlement, as involved in one complaint. There are other

amounts also, which are involved in two other complaints. For discharge of

the above said liability, the petitioners had issued cheque dated 08.01.2009

for the above said amount of Rs.18,52,253/-. For the amounts involved in

other complaints, two other cheques were also issued. However, on being

presented, the cheques were dishonored by the Bank. Resultantly, notices

were issued to the petitioners/ accused on account of dishonor of all the

three cheques, as involved in three complaints. Despite the notices, the

amounts were not paid by the petitioners. This resulted into complaints

being filed against the petitioners under Section 138 of Negotiable

Instruments Act. The summoning orders were issued against the present

petitioners in all the three complaints.

During the pendency of the above said complaints against the

petitioners, they filed applications for compounding of the offences in all

the three complaints. However, since the complainant had not agreed for

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compounding the offences, therefore, the trial Court dismissed the

applications moved by the petitioners, in all the three complaints.

Challenging that order passed by the trial Court; as well as;

seeking quashing of the complaint and the summoning order, the present

petitions have been filed.

Counsel for the petitioners has contended that, after the

summons were issued against the present petitioners in the complaints, then

they had also got lodged an FIR against the complainant. As an attempt for

compromising the entire matter, the complainant had agreed for quashing of

the complaints, at the stage when the complaints had filed application for

seeking anticipatory bail; in the FIR case lodged by the petitioner.

However, thereafter, the complainant got dishonest and the complainant

tried to get out of the agreement arrived at between the parties. Hence, the

petitioners moved the abovesaid applications for compounding, by attaching

the drafts for the amounts of cheque involved in the complaint; with further

undertaking to pay anymore reasonable amount deemed appropriate by the

Court. But these applications have been dismissed by the trial Court. It is

further contended by the counsel that as per the law laid down by the

Hon'ble Supreme Court in 2010(5) SCC 663 - Damodar S. Prabhu v.

Sayed Babalal H. and another judgment rendered in 2017(4) RCR

(Criminal) 476 - M/s Meters and Instruments Private Limited and

Another v. Kanchan Mehta, the consent of the complainant is not required

for compounding the offence under Section 138 of Negotiable Instruments

Act. Counsel has referred to the judgment of the Hon'ble Supreme Court in

Damodar S. Prabhu's case (supra), to contend that provisions of Section

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320 Cr.P.C, which requires consent of complainant, have been held to be

non-applicable in case of compounding of the offence under Section 138 of

NI Act due to use of non-obstante clause in Section 147 of NI Act. While

referring to the judgment rendered in M/s Meters and Instruments

Private Limited's case (supra), counsel has submitted that this judgment

has specifically dealt with the issue of consent of the complainant; for the

purpose of compounding; and has held that the Court can permit

compounding of the offence irrespective of or in absence of the consent of

the complainant; as well. Counsel for the petitioner further contends that

pursuant to the earlier agreement arrived at between the parties, the

petitioners had already given their consent for quashing of the FIR No.31

dated 06.02.2010 registered under Sections 420, 406, 465, 467, 468, 471,

120-B IPCat Police Station Division No.4, Jalandhar, which was lodged

against the complainant. However, now the complainant has resiled from

his part of the compromise. Through this modality, the complainant has

tried to take the undue advantage of the Court proceedings.

On the other hand, learned counsel for the complainant/

respondent has argued that; it is not disputed that the complainant had filed

the three complaints prior in time. Thereafter, as a counter blast, the present

petitioners had also got lodged the above said FIR against the complainant

in the year 2010. At the stage of seeking anticipatory bail, the parties had

arrived at a compromise on 19.03.2010. Under that compromise, the parties

were to withdraw/ get quashed; all the criminal proceedings against each

other. The present petitioners were to pay Rs.12 lakhs to the complainant.

In compliance of the compromise, the complainant had withdrawn the three

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complaints against the present petitioners. However, the present petitioners

neither paid Rs.12 lakhs to him nor got the FIR against the complainant

quashed; in compliance of the compromise arrived at between the parties.

This led to filing of three petitions by the present complainant; before this

Court earlier, i.e. CRM-M-14420 of 2011 - Swatantar Kumar Chopra Vs.

M/s Anant Tools (Unit-II) Pvt. Ltd. and others, CRM-M-20527 of 2011 -

M/s Anant Tools Pvt. Ltd. Vs. M/s Anant Tools (Unit-II) Pvt. Ltd. and

others, CRM-M-20528 of 2011 -M/s Anant Tools Pvt. Ltd. Vs. M/s Anant

Tools (Unit-II) Pvt. Ltd. and others.

After hearing both the sides, this Court had found that the

compromise between the parties had finally broken down. As a result, this

Court had passed order dated 05.08.2014, separately; in those three

petitions, holding that the agreement between the parties is declared to be

rescinded and the parties would be at liberty to prosecute their criminal

proceedings against each other. Accordingly, it is contended by counsel for

the respondent, that there was no more any compromise between the parties

and this Court had granted liberty to the parties to prosecute their respective

cases. Hence, the earlier compromise cannot be referred to by the

petitioners for any purpose, for compounding of the offences or for

quashing of the complaints.

As reply to the judgments cited by counsel for the petitioners,

the counsel for the respondents has submitted that the Hon'ble Supreme

Court in Damodar S. Prabhu's case (supra), has not been decided upon

the issue involved in the present case, i.e., whether the compounding can be

permitted by the Court even in absence of the consent of the complainant?

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It is contended by the counsel that consent of the complainant/ injured in a

criminal case is a sine qua non for compounding of the offences. While

referring to the above said case of Damodar S. Prabhu's case (supra), the

counsel has contended that although this judgment has dealt with the

Section 147 of Negotiable Instruments Act; which uses a non-obstante

clause; and has considered its effect vis-a-vis Section 320 of Cr.P.C.,

however, this judgment has not specifically explored the applicability of

Section 320 of Cr.P.C qua the consent of the complainant; in case of

compounding of offence under Section 138 of NI Act. It is further

contended by the counsel that this aspect was specifically considered and

decided by the Hon'ble Supreme Court in 2012(1) R.C.R. (Criminal) 822,

JIK Industries Limited and Others v. Amarlal V. Jumani and Another. In this case, the Hon'ble Supreme Court has categorically explained that;

although in the earlier judgment rendered in Damodar S. Prabhu's case

(supra), the question of exclusion of Section 320 Cr.P.C in cases relating to

compounding of offences under Section 138 of NI Act, due to Section 147

of NI Act, has been considered, yet the applicability of Section 320 Cr.P.C.

for the purpose of consent of the compounding party, has not been decided

by the Court. It is contended by the counsel that the judgment in JIK

Industries Limited's case (supra) has considered the scope of the non-

obstante clause used in Section 147 of NI Act in great details; and has

ultimately held that despite the earlier judgment rendered in Damodar S.

Prabhu's case (supra), the proceedings under Section 138 of Negotiable

Instruments Act cannot be compounded; except with the consent of the

complainant.

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Having heard learned counsel for the parties, this Court finds

that the arguments raised by the learned counsel for the petitioners are not

legally sustainable. So far as the compromise between the parties, under

which the petitioner can take recourse, is concerned, the same has already

been held to be finally revoked by this Court, with further liberty to the

respective parties; to prosecute their criminal cases against each other.

Therefore, by any means, it would not have been possible for the trial Court

to give effect to any kind of agreement/ compromise or consent; on the part

of the complainant on its own. Hence, the only question; which the trial

Court could have considered is, whether the application filed by the

petitioner for compounding of the offence under Section 138 of Negotiable

Instruments Act, would have been allowed even without consent of the

complainant. The trial Court has rightly rejected the application for

compounding moved by the petitioners; for the lack of necessary consent

from the complainant. This Court does not find any illegality or infirmity in

the order passed by the trial Court.

So far as judgments cited by the learned counsel for the

petitioner are concerned, this Court finds substance in the argument of the

learned counsel for the respondents; that the judgment of the Hon'ble

Supreme Court rendered in Damodar S. Prabhu's case (supra) does not

specifically deal with the issue of compounding of an offence under Section

138 of Negotiable Instruments Act in absence of consent of the

complainant. This judgment; primarily; proceeds on the assumption that, in

the facts of that particular case, there was a consent between the parties.

The dispute in that case was only regarding the stage at which the parties

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can; appropriately; be permitted to compound the offence under Section 138

of Negotiable Instruments Act. Although the Hon'ble Supreme Court held

that even under Section 147 of NI Act, the offence under Section 138 of

Negotiable Instruments Act can be compounded at any stage, however, the

Hon'ble Supreme Court laid down a graded scale of costs, to be paid by the

party applying for compounding; with reference to the stage of proceedings;

at which the compounding has been sought by the party. Beyond that, this

judgment has no significance; so far as the question of consent of the

complainant for compounding is concerned.

The above said judgment of the Supreme Court rendered in

Damodar S. Prabhu's case (supra), has specifically been considered by

the subsequent Bench of Hon'ble Supreme Court in case of JIK Industries

Limited's (supra). While explaining the scope of consideration in

Damodar S. Prabhu's case (supra), the Hon'ble Supreme Court in the

case of JIK Industries Limited's (supra), has held that; this judgment

cannot be interpreted to mean that applicability of Section 320 Cr.P.C stands

altogether obliterated due to use of non-obstante clause in Section 147 of

the Negotiable Instruments Act. The Court in JIK Industries Limited's

case (supra) also held that the basic ingredients of Section 320 Cr.P.C do

not stand excluded merely because of uses of non-obstante clause in Section

147. It has been further held that the use of the non-obstante clause in a

statute has to be considered with reference to the context in which it has

been used. Accordingly, it has been held that the basic ingredient of

compounding, i.e., the consent of the other side, the complainant in the

present case, cannot be dispensed with while considering any application

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for compounding. This proposition qua compounding has been contrasted

by the Hon'ble Supreme Court, in this judgment, as against the proceedings-

where the quashing of a complaint is sought by the accused. The Supreme

Court has held that quashing of a complaint stands on a different footing

and it can be ordered even without the consent of the complainant.

However, compounding is altogether a different concept, and the same

cannot be resorted to or applied by the Court; except with the consent of the

complainant.

Although the counsel for the petitioners has rightly relied upon

the subsequent judgment of the co-ordinate Bench of the Hon'ble Supreme

Court rendered in M/s Meters and Instruments Private Limited's case

(supra), however, this Court finds that this judgment, though has referred to

the earlier judgment of the Supreme Court rendered in JIK Industries

Limited's case (supra), however, has neither overruled the same nor has

taken a detailed discussion regarding the proposition, which was

specifically decided by the Hon'ble Supreme Court in the case of JIK

Industries Limited's case (supra). Therefore, this Court is faced with a

piquant situation, where there are two judgments from two co-ordinate

Benches of the Hon'ble Supreme Court on the same proposition, but are

diametrically opposed to each other. However, this dilemma has also been

put to peace by the Hon'ble Supreme Court in another Constitutional Bench

judgment, rendered in 2017(4) RCR (Civil) 1009 - National Insurance

Company Limited v. Pranay Sethi and others. In this judgment, the

Hon'ble Supreme Court has amply clarified that; in case the subsequent

Bench of equal strength does not intend to follow the earlier Bench of the

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same strength; then the appropriate course for the subsequent Bench is only

to refer the matter to the larger Bench. It has further been clarified that in

case this recourse is not adopted by the subsequent Bench, then it is the

judgment first in point of time; which shall be a binding precedent on that

point of law and not the subsequent judgment.

In view of this pronunciation of the law by the Constitutional

Bench judgment of the Supreme Court in Pranay Sethi's case (supra), this

Court finds that; it has to follow the judgment rendered by the Hon'ble

Supreme Court in case of JIK Industries Limited's case (supra), which

mandated the content of the complainant for compounding of the offence

under Section 138 of NI Act.

In the present case, admittedly, there is no consent for

compounding on the part of the complainant, therefore, it was impermissible

for the trial Court to permit compounding merely on unilateral application

moved by the petitioner/ accused. Hence the trial Court has not committed

any illegality by declining the application for compounding. So far as other

relief prayed for in this petition, qua quashing of complaint and summoning

orders, on merits of the case are concerned, this Court does not find any

factual or legal basis for those reliefs. Neither any serious arguments were

addressed qua that aspect.

In view of the above, finding no merit in these petitions, the

same are dismissed.

September 20, 2018 ( RAJBIR SEHRAWAT ) renu JUDGE Whether Speaking/reasoned Yes/No Whether Reportable Yes/No

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