Himachal Pradesh High Court
Manoj Chauhan vs Suman Sehgal on 12 July, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr. Revision No. 122 of 2019
Date of decision : 12.07.2019
Manoj Chauhan ... Petitioner.
Versus
Suman Sehgal
...Respondent
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting? Yes
For the Petitioner : Mr. Vivek Chauhan, Advocate.
For the Respondent : Mr. Manoher Lal Sharma, Advocate.
Anoop Chitkara, Judge. (Oral)
The matter for consideration before this Court is the criminal revision petition, filed under sections 397 & 401 of the Code of Criminal Procedure, 1973, starting now to be called as CrPC. The petitioner is challenging the judgment dated 5.1.2019, passed by Sessions Judge, Solan, dismissing his appeal, (Criminal appeal no. 2-S/10 of 2018) and upholding the decision of the trial Court, dated 19-12-2017, passed by Judicial Magistrate, Ist Class, Court No. 2, Solan, H.P., (Case no. 298-3/2015, Suman Sehgal Vs. ::: Downloaded on - 29/09/2019 00:45:10 :::HCHP 2 Manoj Chauhan), convicting the accused of commission of an offence punishable under section 138 of Negotiable instruments .
Act, from now on called as NIA. The petition was put up on 11-4-2019, when this Court issued notices to the respondent/complainant.
2. On 19-06-2016, the learned counsel for the parties stated that the parties have entered into a compromise and they have settled all the money transactions in terms of the same.
Petitioner has also moved an application under Section 482 Cr.P.C.
(Cr.M.P. No. 1051 of 2019) for compounding of the offence in question, annexing therewith the compromise deed (Annexure-A).
3. Today the petitioner, who is present in the Court, has stated that the entire settled amount stands paid to the complainant-respondent and now nothing is outstanding. His statement to this effect also stands recorded separately in Court today. The learned Counsel for the complainant-Respondent does not dispute this statement.
4. The gist of the complaint filed by the complainant/respondent, under Section 138 of the Negotiable Instrument Act is as follows:-
(a) The accused approached the complainant and requested to give him a sum of Rs.2,50,000/-
and assured to return that amount. In lieu thereof, ::: Downloaded on - 29/09/2019 00:45:10 :::HCHP 3 the accused issued one cheque for a sum of Rs.2,50,000/-, bearing No. 002309 dated 29-07- .
2015 drawn at Union Bank of India, the Mall Solan, Tehsil & District- Solan, in favour of the complainant. The complainant presented this cheque for encashment in State Bank of India, The Mall Solan, H.P., but it was returned by the bank as dishonoured, on account of insufficient funds, in the account of the accused.
(b) The complainant got issued a legal notice dated 20-08-2015 to the accused, calling upon him to make the payment of cheque amount, within fifteen days of the receipt of notice. Despite the service of notice, the accused did not pay the cheque amount.
(c) Resultantly, a complaint was filed under Section 138 of the Act.
(d) Learned trial Court put notice of accusation to the accused.
(e) After completion of the trial, accused was convicted and sentenced to undergo simple imprisonment for two months and was also directed to pay compensation to the tune of Rs.2,20,000/- lacs. In case of default in payment of the compensation amount, he shall have to undergo further simple imprisonment for a period of fifteen days.
(f) The appellate Court upheld the judgment of conviction. Resultantly, petitioner filed the present criminal revision.
::: Downloaded on - 29/09/2019 00:45:10 :::HCHP 45. It has been argued by the learned counsel for the appellant/accused that in view of the fact that the parties have .
compromised the matter, and entire settled amount has been paid by the accused, therefore, this matter be compounded in terms of the Act, and the consequential proceedings arising thereof be quashed. Learned counsel appearing for respondent consented for such closure and therefore, the offence is ordered to be compounded.
6. The jurisprudence behind the Negotiable Instruments Act, 1881 is that the drawer of the cheque, who signs the promissory instrument, honors his commitment, made during a transaction. The legislative intention is not to send the people to suffer incarceration because of the bouncing of the cheques but to provide them an opportunity to pay. These proceedings are to execute the recovery of cheque amount by showing teeth of penal laws.
7. This Court has inherent powers under Section 482 of the Code of Criminal Procedure, which is further supported by Section 147 of the N.I. Act to interfere in this kind of matter, where parties have paid the entire money, to close all the proceedings.
::: Downloaded on - 29/09/2019 00:45:10 :::HCHP 58. Given the entirety of the facts of the case, as well as judicial precedents, I am of the considered opinion that .
continuation of these proceedings will not suffice any fruitful purpose whatsoever. Therefore, I am of the considered opinion that this is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure read with 147 of Negotiable Instruments Act, is invoked to quash the criminal proceedings.
9. In Shakuntala Sawhney v. Kaushalya Sawhney, (1979) 3 SCR 639, at p 642, Hon'ble Supreme Court observed as follows:
"The finest hour of Justice arise propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion."
10. Consequently, in view of the compounding of offences, the judgement of conviction passed by the learned trial Court, and affirmed by the learned Additional Sessions Judge, is set aside and quashed.
11. A three judges bench of Supreme Court, in Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, laid down the following law for compounding of offences punishable under Negotiable Instruments Act, 1881:
::: Downloaded on - 29/09/2019 00:45:10 :::HCHP 6"THE GUIDELINES .
(i) In the circumstances, it is proposed as follows :
(a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.
(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.
(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.
(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.
Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating ::: Downloaded on - 29/09/2019 00:45:10 :::HCHP 7 at the level of the Court before which compounding takes place. For instance, in case of compounding .
during the pendency of proceedings before a Magistrate's Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority.
17. We are also conscious of the view that the judicial endorsement of the above quoted guidelines could be seen as an act of judicial law-making and therefore an intrusion into the legislative domain. It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. We have already explained that the scheme contemplated under Section 320 of the Criminal Procedure Code cannot be followed in the strict sense. In view of the legislative vacuum, we see no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act. The graded scheme for imposing costs is a means to encourage compounding at an early stage of litigation. In the status quo, valuable time of the Court is spent on the trial of these cases and the parties are not liable to pay any Court fee since the proceedings are governed by the Code of ::: Downloaded on - 29/09/2019 00:45:10 :::HCHP 8 Criminal Procedure, even though the impact of the offence is largely confined to the private parties. Even .
though the imposition of costs by the competent court is a matter of discretion, the scale of costs 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 reasons in writing for such variance. Bonafide litigants should of course contest the proceedings to their logical end. Even in the past, this Court has used its power to do complete justice under Article 142 of the Constitution to frame guidelines in relation to r subject-matter where there was a legislative vacuum.
12. In Madhya Pradesh State Legal Services Authority v. Prateek Jain, (2014) 10 SCC 690, the Supreme Court holds as under:
"22. What follows from the above is that normally costs as specified in the guidelines laid down in the said judgment has to be imposed on the accused persons while permitting compounding. There can be departure therefrom in a particular case, for good reasons to be recorded in writing by the concerned Court. It is for this reason that the Court mentioned three objectives which were sought to be achieved by framing those guidelines, as taken note of above. It is thus manifestly the framing of "Guidelines" in this judgment was also to achieve a particular public purpose. Here comes the issue for consideration as to ::: Downloaded on - 29/09/2019 00:45:10 :::HCHP 9 whether these guidelines are to be given a go by when a case is decided/settled in the Lok Adalat? Our .
answer is that it may not be necessarily so and a proper balance can be struck taking care of both the situations.
23. Having regard thereto, we are of the opinion that even when a case is decided in Lok Adalat, the requirement of following the guidelines contained in Damodar S. Prabhu (supra) should normally not be dispensed with. However, if there is a special/specific reason to deviate therefrom, the Court is not remediless as Damodar S. Prabhu (supra) itself has given discretion to the concerned Court to reduce the costs with regard to specific facts and circumstances of the case, while recording reasons in writing about such variance. Therefore, in those matters where the case has to be decided/settled in the Lok Adalat, if the Court finds that it is a result of positive attitude of the parties, in such appropriate cases, the Court can always reduce the costs by imposing minimal costs or even waive the same. For that, it would be for the parties, particularly the accused person, to make out a plausible case for the waiver/reduction of costs and to convince the concerned Court about the same. This course of action, according to us, would strike a balance between the two competing but equally important interests, namely, achieving the objectives delineated in Damodar S. Prabhu (supra) on the one hand and the public interest which is sought to be ::: Downloaded on - 29/09/2019 00:45:10 :::HCHP 10 achieved by encouraging settlements/resolution of case through Lok Adalats."
.
13. The accused-petitioner is presently unemployed. The respondent has not disputed this fact. On the other hand, counsel for the respondent, on the count of financial difficulties of the accused/convict had agreed to discount the compensation amount.
The accused in his statement, which is separately recorded on oath, stated that he has a daughter studying in 1 st Year and a son studying in 9th Class and the financial difficulties faced by the petitioner/convict can very well be analyzed. It is not a case under some serious penal offences but a case of failure, to discharge his financial liabilities.
14. Therefore, given the law laid down by Hon'ble Supreme Court in Damodar S. Prabhu vs. Sayed Babalal H., (2010) 5 SCC 663 and further explained in Madhya Pradesh State Legal Services Authority vs. Prateek Jain and another (2014) 10 SCC 690, sufficient reasons exist to waive off the compounding fee. Hence, this Court, need not resort to the powers conferred under section 482 CrPC and all Courts can grant such relief by placing reliance upon the jurisprudence behind the Judicial precedents, cited before. Therefore, this Court is dispensing with the compounding ::: Downloaded on - 29/09/2019 00:45:10 :::HCHP 11 fee, quantified at 15% of the sum, and the same is waived off. The criminal revision stands closed, and in a nutshell, the Court is .
acquitting the petitioner of all the charged offences.
15. The learned trial Court shall release all the amount deposited in this case, if any, along with interest in favour of respondent, in the account of the complainant in the manner, as desired by her, immediately on production of the certified copy of this judgment.
16. Accordingly, the petition stands allowed in the terms mentioned above. All pending application(s), if any, stand closed.
12th July, 2019. (Anoop Chitkara)
(NK) Judge.
::: Downloaded on - 29/09/2019 00:45:10 :::HCHP