ORDER
N.K. Jain, J.
1. A short but imporlant question of law arises for determination in this petition is as to whether the offence under Section 138 of the Negotiable Instruments Act (for short, 'the Act') can be permitted to be compounded.
2. The case giving rise to this petition is pending in Appeal (No. 68/2000) before the 1st Addl. Sessions Judge, Mhow, who vide Order dated 23-9-2000 has declined joint prayer made by the complainant-payee and the accused drawee (the petitioners herein) to compound the offence under Section 138 of the Act for which matter is convicted by the Trial Magistrate. The learned ASJ has held that the offence under Section 138 is not compoun-dable and no permission to compound the same can be accorded in view of the bar contained under Sub-section (9) of Section 320 of the Code of Criminal Procedure, 1973 (for short, 'the Code').
3. Interestingly both the complainant petitioner No. 1 and accused -petitioner No. 2 have come up before this Court under Section 482 of the Code seeking permission to compound the offence and it is submitted that the entire claim of the complainant-payee stands satisfied by the settlement arrived at between the parties. Shri S.K. Vyas, learned counsel for accused (petitioner No. 2) has submitted that the offence under Section 138 of the Act is a personal offence not against the society at larger and since claim of the payee is satisfied fully by the drawer, no useful purpose would be served by sentencing the latter to any punishment. It is further contended that the bar contained under Sub-section (9) of Section 320 of the Code applies to the offences under the Indian Penal Code only and not to the offences under special laws like the one in hand. Learned counsel has also referred to Section 345 and the IInd Schedule of the old Cr.PC (1898) which contained an express provision that the offences under other laws are not compoundable. It was thus contended that the omission of any such provision in the new Code, goes to show that the prohibition against composition of the offences under other laws is taken away by the new Code. Reliance is placed on a decision of Andhra Pradesh High Court in the case of M. Mohan Reddy, (1996) 1 CCR 516. Learned counsel has also cited a decision of the Supreme Court in the case of O.P. Dholakia, a short notice of which is reported in 2000 (I) MPWN 178, where permission to compound the offence under Section 138 of the Act was accorded by the Apex Court in an appeal pending before it.
As against it, Shri Girish Desai, learned Dy. Advocate General for respondent-State strongly defended the decision of the Appellate Court below and submitted that subject to the limitations provided under Section 42 of the Act, the offence under Section 138 is to be inquired into, tried and otherwise dealt with according to the provisions of the Code. Section 320, it is contended, shall govern composition of the offences under the special laws unless these laws contain some special provision for permitting such composition. I feel persuaded by the argument.
4. Section 138 makes the dishonour of cheques for insufficiency of funds etc., in the account of the drawer, punishable subject to certain conditions regarding demand by the payee and failure on the part of the drawer to pay the amount of cheque, as stipulated in the proviso to that Section. Section 142 provides for taking cognizance of the offence only on a written complaint made by the payee within the prescribed time limit. It also provides as to by which Court the offence can be tried i.e., the Court of Metropolitan Magistrate or a Judicial Magistrate of the First Class. However, the Act is silent as to the procedure to be followes for trial of the offences and the other connected matters. The Act also does not provide for compounding the offence. Under the circumstance, as provided by Section 4 (2) of the Code, the offence under Section 138 of the Act has to be inquired into, tried and otherwise dealt with according to the provisions of the Code subject to the limitations provided in Section 142 already referred to hereinbefore. Section 4 of the Code makes this position abundantly clear and thus reads :'
'4. Trial of offences under the Indian Penal Code and other laws.--
(1) All offences under the Indian Penal Code 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 of place of investigating, inquiring into, trying or otherwise dealing with such offences.'
5. The conjoint effect of Sub-sections (1) and (2) of Section 4 is that the offences whether under the Penal Code or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code unless there be an enactment regulating the manner or place of investigating, inquiring into, trying and otherwise dealing with such offences in which case such an enactment will prevail over the Code. The words 'otherwise dealt with' occurring in Sub-section (2) of Section 4 clearly refer to such dealing with offences as is provided in the provisions of the Code apart from the provisions of investigation, inquiry or trial. Such provisions are to be found in the Code for instance, Chapters XIV to XXIII. Chapter XIV in fact lays down general provisions as to the inquiry and trial and include Section 320 dealing with compounding of offences.
6. It will be thus seen that the offence under Section 138 of the Act is to be inquired into, tried and otherwise dealt with in accordance with the provisions of the Code subject to the limitations provided by Section 142 of the Act. Since the Act makes no provision for compounding the offences, Section 320 of the Code shall govern question of its composition and the bar contained under Sub-section (9) shall operate against composition of the offence. Sub-section (9) of Section 320 is not confined only to the offences under the I.P. Code. It is useful to read here the definition of the term 'offence' given in clause (n) of Section 2 of the Code which is as follows :
(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.
7. A bare reading of the aforesaid definition makes it abundantly clear that 'offence' is a comprehensive term embrassing every act committed or omitted in violation of a Penal Law forbidding or commanding it. The term offence occurring in the Code is thus not confined to the offences under the I.P. Code and includes any act or omission made punishable by any law for the time being in force. It is, therefore, incorrect to say that Section 320 of the Code embrasses only the offences made punishable under the I.P. Code or that its provisions have no application to the offences against other laws. The preposition laid down in M. Mohan Reddy (supra) by the High Court of Andhra Pradesh in my respectful opinion, does not represent the correct position of law. The Full Bench of the same High Court in a subsequent decision in Smt. Ghousia Sultana (1996 Cr.LJ 2973) has clearly held that the offences which are not declared compoundable under Section 320 of the Code cannot be allowed to be compounded even by taking recourse to the inherent jurisdiction of the High Court under Section 482 of the Code.
8. It is true that under Section 345 and the IInd Schedule of the old Code 1898, all offences under the special laws were made not compoundable.
No such specific provision is now contained in the new Code. But the omission does not indicate that Sub-section (9) of Section 320 is not applicable to the offences under the special laws. From the observations of 41st Report of the Law Commission it is clear that the matter was left to the legislature concerned to decide as a matter of policy, whether and to what extent offences under the special laws should be made compoundable. So, in absence of any specific provision in the statute itself in that behalf, Section 320 of the Code shall govern the question of composition of such offences under the special laws.
9. In O.P. Dholakia (supra), the Apex Court, it appears allowed composition of offence under Section 138 of the Act in the appeal pending before it. It may however, be submitted that no ratio decidendi as such is laid down by their Lordships in this decision. Under Article 141 of the Constitution, the law declared by the Supreme Court is binding on all Courts within the country. However, a decision which is not express and does not proceed on a consideration of the issue cannot be deemed to be a taw declared to have a binding effect as is contemplated by Article 141 [See: State of U.P. v. Synthetics, (1991) 4 SCC 139]. From the aforesaid citation in O.P. Dholakia, it is not clear that the question of law with which we are confronted here, was raised before the Court or at all perceived by their Lordships while according permission to compound the offence under Section 138.
10. In another decision in Ram Lal (AIR 1999 SC 895) it was held:
'It is apparent that when the decision in Mahesh Chand (AIR 1988 SC 2111) (supra) was rendered attention of the learned Judges was not drawn to the aforesaid legal prohibition. Nor was attention of the learned Judges who rendered the decision in Y. Suresh Babu [1987 (2) JT (SC) 361] (supra) drawn. Hence those were decisions rendered per incuriam. We hold that an offence which law declares to be non-compoundable even with the permission of the Court cannot be compounded at all'.
Similar view was taken by the Division Bench of this Court in M.Cr.C. No. 2983/97 (Deepak Dawar and Ors. v. State of M.P. and Ors), decided on 1-9-1999.
11. There can be thus no manner of doubt that the offence under Section 138 of the Negotiable Instruments Act is not compoundable. Permission to compound the offence was rightly refused by the Appellate Court below and no such permission can be accorded by this Court also even by taking recourse to its inherent powers under Section 482 of the Code.
12. Before I say omega, it may be stated that the fact that the parties have arrived to a settlement and the entire claim of the complainant - payee stands satisfied, is an important factor to be taken into consideration by the Appellate Court below while deciding the question of sentence. The complainant petitioner No. 1, through his counsel has made a categorical statement before this Court that he shall not oppose any such prayer which may be made by the accused before the Court below nor press for any sentence to be passed against the latter. The Appellate Court below shall keep all these factors in mind while deciding the appeal finally particularly in the matter of sentence. 13. With the observations as aforesaid, this petition is dismissed.
13. Misc. Criminal Case dismissed.