Delhi District Court
Pramod Kumar Sharma vs Pawan Kumar on 19 July, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Appeal No. 35/12
Unique case ID No. 02404R0227482010
Pramod Kumar Sharma
M/s Shivam Traders
C5/8, Gali NO.2
Sadatpur Extn.
Delhi110094
...Appellant
Versus
Pawan Kumar
Son of Shiv Narayan
Proprietor
M/s Jyoti Flour Mill
2392, Bawana Road, Narela
Delhi.
.....Respondents
Date of institution of the case: 04.05.12
Arguments heard on: 09/07/2012
Date of reservation of order: 09/07/2012
Date of Decision: 19/07/2012
JUDGMENT
This is an appeal u/s 374 (2) of Cr.PC filed against the judgment and order on sentence dated 12/08/2010 and 17.08.2010 passed by Ld Trial Court.
CA No. 35/12 1/5
In brief, in the said judgment u/s 138 of N.I.Act, appellant was convicted and sentenced to undergo two years SI with directions to pay compensation to the complainant to the amount of Rs. 6,50,000/ and in default to further undergo SI for a period of 180 days.
The impugned judgment and order on sentence has been challenged on various grounds. Ld Cournsel for appellant has contended that the said impugned judgment and order on sentence is contrary to the material available on record. It is further contended that both, the judgment and order on sentence are based on surmises and conjectures . Ld Trial Court has further contended that Ld Trial Court has failed to appreciate the facts in its correct perspective. It is further contended that the complainant has stopped supplying the goods after June 2004 whereas the cheque in question was presented on 04/08/2005, after the expiry of one year and validity of cheque was only six months.
It is further contended that the complainant himself has admitted that he was not the proprietor of Jyoti Brand Atta then how he could have supplied the Jyoti Brand Atta to the complainant of Rs. 3,29,570/. It is further contended that complainant failed to filed any bills regarding the payment of Rs. 3,29,570/, so Ld Trial Court has not appreciated the facts in a correct manner and he has further contended that complainant had failed to prove his case and liability of payment by appellant.
It is further contended that other two cases of similar nature were also filed against the present appellant by the complainant on 20/08/04 and on 24/09/2004 for the sum of Rs. 1,40,000/ and 1,60,000/ and third cheque was presented after expiry of one year whereas all the three cheques were CA No. 35/12 2/5 issued to the complainant on the same day and time, as admitted by the complainant and complainant also admitted that amount in the cheque in question was mentioned by him and Ld Trial court has failed to appreciate these facts.
It is further contended that counsel for the appellant complainant has committed fraud upon the appellant by way of misusing the three cheques , which were given as a security for supply of Jyoti Brand Atta in the presence of witnesses and when the appellant came to know that complainant was not the owner of Jyoti Brand Atta then he had immediately stopped the payment of above mentioned cheques on 16.04.2004. It is further contended that complainant has not been able to prove its case beyond reasonable doubts and appellant should have been acquitted by Ld Trial Court but Ld Trial Court over looked the defence of appellant, which has caused serious prejudiced to appellant, hence both judgment and order on sentence are liable to set aside.
I have heard Ld Counsel for the appellant and Ld Counsel for respondent and also have gone through the statements filed on behalf of appellant and have also gone through the TCR.
During the course of arguments, matter has been settled between the parties for a sum of Rs. 3,00,000/, which has been paid by way of demand draft No. 2800183 dated 17/07/2012.
Ld counsel for both the parties have contended that the matter can be compounded even at the stage of appeal and in support of same they have relied upon the Damodar S. Prabhu Vs Sayed Babala H. of Supreme Court of India also reported as AIR 2010 SC 1907.
CA No. 35/12 3/5
I have considered the submissions of Ld counsel for parties and have gone through the judgment relied upon. According to section 147, offences punishable under Negotiable Instrument Act is compoundable.
It has also been held in K.M.Ibrahim V. K.P. Mohammed and Anr.,2009 (14) SCALE 262 that " It is true that the application under section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution."
According to it, offence u/s 138 of Negotiable Instrument Act can be compounded at the appellate stage also.
Considering the above facts and circumstances, as the matter has been compromised by both the parties, I allow the compounding of the offence u/s 138 of N.I. Act. Sentence as imposed by Ld Trial Court vide order dated 17/08/2010 is set aside and compensation amount is modified to Rs. 3 lacs as settled.
It has also been held in Damodar S. Prabhu Vs Sayed Babala H. of Supreme Court of India that if the matter is compromised in the court of Appeal before the court of Sessions Court than the same be allowed on the condition that the accused will pay 15 percent of the cheque amount by way of cost. It has also been held that scale of cost has been suggested in the interest of uniformity. The competent court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording CA No. 35/12 4/5 reasons in writing for such variance.
Considering the above facts and circumstances, as appellant remained unable to pay the amount and it is agreed to pay the compensation as lesser amount, I am of the opinion that the 15% cost of the cheque will be on higher side. Accordingly the cost at the rate of 1% of the cheque is imposed on appellant. Appellant is directed to deposit 1% of total amount of cheque of Rs. 329570/ i.e. Rs. 3300/ in the court as Cost.
TCR be sent back with copy of order to the concerned court of learned Metropolitan Magistrate.
Appeal file be consigned to record room.
Announced in Open Court on dated 19th of July, 2012 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi CA No. 35/12 5/5 CA No. 35/12 6/5