Date of judgment:
August 13, 2021
Judges:
Chandra Dhari Singh, J.
Parties:
Applicant: RISHI MOHAN SRIVASTAVA
Opposite Party: STATE OF U.P. & ANOTHER
Subject
Whether an order passed by the HC in the criminal revision petition confirming the conviction can be nullified by the HC in a petition filed under Section 482 of CrPC?
Overview
- A petition under Section 482 of CrPC was filed before the HC praying to compound the offence committed by the petitioner under Section 138 of the Negotiable Instruments Act and quash the sentence of one year awarded to him.
- The petitioner and opposite party had a business relationship under which the petitioner issued two cheques each of Rs.1,00,000/- in favor of opposite party no.2 and when they were deposited, they bounced due to insufficient funds.
- The opposite party no. 2 filed a complaint under Section 138 of NI Act and the petitioner was convicted for one-year simple imprisonment and a fine of Rs.3,00,000/.
- Aggrieved by the order, the petitioner filed an appeal before the Additional Sessions Judge, Faizabad, which was dismissed and also had to deposit Rs one lakh as a part of the fine.
- The petitioner filed a criminal revision petition before the Allahabad High Court, which was dismissed at the admission stage.
- After the dismissal of the revision petition, both the parties entered into an amicable settlement where the petitioner agreed to pay the rest of Rs 2 lacs to opposite party number no.2 by a demand draft.
- The petitioner has approached the High Court under Section 482 of CrPC seeking relief from the previous order of imprisonment and fine.
- The counsel for the petitioner submitted before the court that there had been a change in circumstances and the offence can be compounded and Court may invoke its inherent power under Section 482 CrPC and relied on the judgment of Gujarat High Court in the case of Kripal Singh Pratap Singh Ori vs. Salvinder Kaur Hardip Singh.
- They also stated that the object of the NI Act is compensatory and not punishable and Section 147 of the NI Act would have an overriding effect on Section 320 CrPC.
- The Additional Government Advocate for the State submitted that instant petition under Section 482 of CrPC is not maintainable as the petitioner has already been convicted and the conviction order has been upheld by the appellate court and by this High Court in the revision petition.
- He also argued that the High Court had already dismissed the revision petition of the petitioner and he should approach the Apex Court.
Legal Provisions
- Section 482, CrPC: Saving of inherent powers of High Court- The High Court can pass such orders that may be necessary under the Code or to prevent abuse of law or safeguard the justice.
- Section 138 of Negotiable Instruments Act: Dishonour of cheque paid by one party to another under legal obligations and such dishonour is due to insufficiency of funds in the account of the payer.
- Section 147 of Negotiable Instruments Act: This Section mentions that not in accordance with provisions of the Criminal Procedure Code, all the offences under the Negotiable Instruments Act will be compoundable in nature which means the offender will be given a chance to pay the money instead of prosecution.
Judgment Analysis
- First and foremost, the court framed the issue that was the concern before it and looked into the relevant provisions of the NI Act and CrPC.
- The court looked into the agreement entered into by the petitioner and the opposite party no.2, in which the petitioner promised to pay the rest amount as per their legal applications.
- The court observed that the powers under Section 482 of CrPC can be exercised only in cases when no other remedy is available to the applicant and not where a specific remedy is provided by the statute.
- Referring to Narinder Singh vs. State of Punjab, the court noted that High Courts should use principles of preventing abuse of the process of the court, secure the ends of justice, and give effect to an order under the Code when deciding matter under Section 482 of the Code.
- The court also held that in the instant case, even though the same court before has dismissed the revisional petition filed by the petitioner before and upheld his conviction, it still has the power under Section 482 to hear the matter in order to avoid a miscarriage of justice.
- Referring to the maintainability of the petition under Section 482, the court noted that in a case where the petitioner is able to prove that there are special circumstances, the petition will be maintained.
- The court refused to agree with the contention that since the adjudication of a criminal offence had reached to the state of revisional level, a compromise without permission of the court could be compounded.
- The court also noted that in reference to an offence under Section 138 of the NI Act, the parties are free to compound the matter at any stage, even after the dismissal of revision application under Section 147 of the Act.
- The court stated that the nature and character of the offence would not change automatically and it is wrong to hold that at the revisional stage, the nature of offence punishable under Section 138 of the NI Act should be treated as if the same is falling under of Section 320 IPC.
- The court held that the parties are free to come to settlement at any stage and in such cases also, the jurisdiction of HC can be invoked under Section 482 CrPC read with Article 226 of the Constitution of India.
- In the final order, the court allowed the petition under Section 482 of CrPC, and the conviction of the petitioner was set aside by the court.
Conclusion
It is important for the judiciary in India to make sure that no person is convicted for the offence he did not commit and the rights of the persons are safeguarded. The Indian legal system makes sure that there is no miscarriage of justice and High Courts and the Supreme Courts have been vested with inherent powers to take any matter into consideration if they believe such previous judgement or order has led to a miscarriage of justice, even at the slightest. One such provision is Section 482 of CrPC where the High Courts have been vested with the power to pass any such order that may be done to prevent abuse of the process of law and also prevent any kind of injustice. In the instant case, the Allahabad High Court faced the issue of whether this power can be invoked in case the parties have settled but the applicant has already been convicted. The court held that High Court can nullify an order of conviction even after the revisional stage on the basis of settlement between parties and for the interest of injustice.
Click here to download the original copy of the judgement
