Himachal Pradesh High Court
________________________________________________ vs Narinder Prakash & Another on 4 October, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 87 of 2023
.
Decided on: 04.10.2023
________________________________________________
Sohan Lal ....Petitioner.
Versus
Narinder Prakash & another ...Respondents.
Coram
of
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
For the petitioner: Ms. Vandana Thakur, Advocate.
For respondent No. 1:
rt Mr. Nand Lal Thakur, Advocate.
For respondent No. 2/State: Mr. B.N. Sharma, Additional
Advocate General.
________________________________________________
Sushil Kukreja, Judge (oral)
The instant petition has been filed by the petitioner-accused under Section 482 of the Code of Criminal Procedure (for short 'Cr.P.C.') with a prayer to quash and set-
aside proceedings initiated, vide order dated 12.01.2023, as well as cancellation of non-bailable warrants issued by the learned Sessions Judge, Mandi, District Mandi, H.P., in Criminal Appeal No. 34/2021/2017, Registration No. 160/2017, against the petitioner, in case titled as Sohan Lal vs. Narender Parkash.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 05/10/2023 20:35:46 :::CIS 22. The brief facts, giving rise to the present petition, can succinctly be summarized as under:
.
3. The accused-Sohan Lal (petitioner herein) borrowed a sum of Rs.80,000/- from the complainant-Shri Narinder Parkash and in order to liquidate his financial liability towards the complainant, he issued cheque, dated of 23.03.2015, amounting to Rs.80,000/-. However, the aforesaid cheque, on being presented for encashment, was rt dishonored on 26.03.2015. Subsequently, the complainant issued a legal notice to the petitioner-accused demanding his amount, but the petitioner-accused did not make any payment to the complainant within the stipulated time.
Therefore, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter, for the sake of brevity, referred to as the "NI Act") before the learned Trial Court.
4. The learned Trial Court after conclusion of the trial convicted the accused under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for a period of six months and to pay a sum of Rs.1,00,000/- as compensation to the complainant.
::: Downloaded on - 05/10/2023 20:35:46 :::CIS 35. Being dissatisfied, the accused/petitioner/convict preferred an appeal before the learned Sessions Judge, .
Mandi, District Mandi, H.P., wherein the learned Sessions Judge Mandi, vide impugned order dated 12.01.2023, ordered as under:
"The NBWs has been returned un- executed with the report that the of appellant/convict has absconded without any address. This report is duly verified by the wife of the appellant/convict. Thus, there are sufficient reasons to believe that rt the appellant/convict has absconded. Hence, a written proclamation requiring the presence of appellant-convict Sohan Lal before this Court on 16.03.2023 be issued. The proclamation be published on or before 14.02.2023 by affixing it on the homestead where the accused last resided, Court notice board and a public place where the accused was residing.
The serving constable be directed to appear before the Court on 16.02.2023 to report the compliance."
Hence, accused/petitioner/convict-Sohan Lal preferred the instant petition under Section 482 Cr.P.C. with a prayer to cancel the non-bailable warrants issued against him by the learned Sessions Judge, Mandi, H.P., on 13.12.2022, in Criminal Appeal No. 34/2021/2017, Registration No. 160/2017, in case titled as Sohan Lal vs. Narender Parkash ::: Downloaded on - 05/10/2023 20:35:46 :::CIS 4 and also to quash the proclamation proceedings, initiated against him, vide order dated 12.01.2023, passed by the .
learned Sessions Judge Mandi, H.P.
6. During the pendency of the instant petition, an application (Cr.MP No. 2673 of 2023) under Section 147 of the NI Act has been filed by the petitioner-accused seeking of permission of this Court to compound the offence by setting-
aside the judgment of conviction, dated 25.08.2017, and rt order of sentence dated 20.09.2017, passed by learned Judicial Magistrate First Class, Chachiot, at Gohar, District Mandi, H.P., in case No. 9-I/2016/4-III/2016.
7. Today, the complainant-Shri Narinder Parkash is present in person before this Court and his statement is separately recorded and placed on the file.
8. In his statement, the complainant-Shri Narinder Parkash stated that he had filed a complaint under Section 138 of the NI Act against the petitioner-accused before the Court of learned Judicial Magistrate First Class, Chachiot at Gohar, District Mandi, H.P., and vide judgment of conviction dated 25.08.2017 and order of sentence dated 20.09.2017, ::: Downloaded on - 05/10/2023 20:35:46 :::CIS 5 the petitioner-accused was convicted under Section 138 of the NI Act and sentenced to undergo simple imprisonment .
for a period of six months and also to pay a compensation in the sum of Rs.1,00,000/-. He has further stated that now, during the pendency of the instant petition, he has settled the matter with the petitioner-accused and in view of the of settlement arrived at between the parties, he has no objection in case judgment of conviction, dated 25.08.2017, rt and order of sentence dated 20.09.2017, passed by learned Judicial Magistrate First Class, Chachiot at Gohar, District Mandi, H.P., is quashed and set-aside and the petitioner-
accused is acquitted of the charge under Section 138 of the NI Act.
9. I have heard the learned Counsel for the petitioner-accused, learned learned counsel for the complainant/respondent No. 1, learned Additional Advocate General for respondent No. 2/State and examined the entire records.
10. Having taken note of the fact that the parties have settled the matter and the complainant has no objection in compounding the offence, therefore, this Court sees no ::: Downloaded on - 05/10/2023 20:35:46 :::CIS 6 impediment in accepting the prayer made on behalf of the accused-petitioner for compounding of offence while .
exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon'ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H., (2010) 5 SCC 663, wherein the Hon'ble Apex Court has held as under:-
of "10. At present, we are of course concerned with Section 147 of the Act, which reads as follows:-
rt "147. Offences to be compoundable- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable."
At this point, it would be apt to clarify that in view of the non-obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure (hereinafter "CrPC") will not be applicable in the strict sense since the latter is meant for the specified offences under the Indian Penal Code, 1860.
11. So far as the CrPC is concerned, Section 320 deals with offences which are compoundable, either by the parties without the leave of the court or by the parties but only with the leave of the Court. Sub-section (1) of Section 320 enumerates the offences which 9 are compoundable without the leave of the Court, while subsection (2) of the said section specifies the offences which are compoundable with the leave of the Court.
12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences ::: Downloaded on - 05/10/2023 20:35:46 :::CIS 7 prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 of the CrPC which states that 'No offence shall be compounded except as provided by this Section'. A bare reading .
of this provision would lead us to the inference that offences punishable under laws other than the Indian Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries of a non obstante clause."
11. In K. Subramanian Vs. R. Rajathi; (2010) 15 Supreme Court Cases 352, it has been held by the rt Hon'ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction. The relevant portion of the judgment is reproduced as under:-
"6. Thereafter a compromise was entered into and the petitioner claims that he has paid Rs. 4,52,289 to the respondent. In support of this claim, the petitioner has produced an affidavit sworn by him on 1.12.2008.
The petitioner has also produced an affidavit sworn by P. Kaliappan, Power of attorney holder of R. Rajathi on 1.12.2008 mentioning that he has received a sum of Rs. 4,52,289 due under the dishonoured cheques in full discharge of the value of cheques and he is not willing to prosecute the petitioner.
7. The learned counsel for the petitioner states at the Bar that the petitioner was arrested on 30.7.2008 and has undergone the sentence imposed on him by the trial Court and confirmed by the Sessions Court, the High Court as well as by this Court. The two affidavits sought to be produced by the petitioner as additional ::: Downloaded on - 05/10/2023 20:35:46 :::CIS 8 documents would indicate that indeed a compromise has taken place between the petitioner and the respondent and the respondent has accepted the compromise offered by the petitioner pursuant to which he has received a sum of Rs.4,52,289. In the affidavit .
filed by the respondent a prayer is made to permit the petitioner to compound the offence and close the proceedings.
8. Having regard to the salutary provisions of Section 147 of the Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, this Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be of permitted to compound the offence committed by him under Section 138 of the Code."
12. Since, in the instant case, the petitioner-accused rt after being convicted under Section 138 of the Act, has compromised the matter with the complainant, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon'ble Apex Court.
13. Therefore, in view of the detailed discussion made hereinabove as well as law laid down by the Hon'ble Apex Court, the parties are permitted to get the matter compounded in light of the compromise arrived inter se them.
14. Accordingly, the present matter is ordered to be compounded and the impugned judgment of conviction, dated 25.08.2017, and order of sentence dated 20.09.2017, passed by the learned Judicial Magistrate First Class, ::: Downloaded on - 05/10/2023 20:35:46 :::CIS 9 Chachiot, at Gohar, District Mandi, H.P., in Case No. 9- I/2016/4-III/2016, and the consequent proceedings initiated .
against the petitioner, vide impugned orders dated 13.12.2022 and 12.01.2023, passed by the learned Sessions Judge Mandi, District Mandi, H.P., in Criminal Appeal No. 34/2021/2017, Registration No. 160/2017, in case titled as of Sohan Lal vs. Narender Parkash, are quashed and set-aside and the petitioner-accused is acquitted of the charge framed rt against him under Section 138 of the Act. Bail bonds, if any, stand discharged. The compounding fee in the sum of Rs.4,000/- has already been deposited by the petitioner before H.P. State Legal Services Authority, Shimla, as per the directions of this Court.
15. The petition stands disposed of accordingly, so also the pending miscellaneous application(s), if any.
( Sushil Kukreja ) th 4 October, 2023 Judge (virender) ::: Downloaded on - 05/10/2023 20:35:46 :::CIS