Delhi District Court
J.S. Saini vs Naresh Bansal on 6 October, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Appeal No. 64/12
Unique case ID No. 02404R0201362012
J.S. Saini
Prop. M/s Anju Creation,
Old address: 568, 2nd Floor, Gali Ghanteshwar,
Katra Neel, Chandni Chowk,
Delhi110006
Also at:
R/o 6959/19, Mohan Market,
East Rohtash Nagar,
Shahdara Delhi
Appellant
Versus
Naresh Bansal
S/o Late Sh. Ram Phal Bansal
Prop. Of M/s Prateek Traders
R/o B228, Gali No.2
Majlis Park, Azadpur,
Delhi.
.....Respondent
Date of institution of the case: 03/08/12
Arguments heard on: 04/10/12
Date of reservation of order: 04/10/2012
Date of Decision: 06/10/12
JUDGMENT
This is a criminal appeal u/s 374(3) of Cr.PC against the judgment and order dated 05/06/2012 and 26/06/2012 respectively passed by Ld Trial court.
In brief, the case u/s 138 N.I. Act was filed and vide impugned CA No.64/12 1/4 judgment and order on sentence, appellant was sentenced for four months SI and further directed to pay the compensation of Rs.50,000/ I.D one month SI. The Impugned judgment and order on sentence has been challenged by appellant on the various grounds.
It is contended that Ld Trial Court failed to appreciate the fact that respondent has not been able to prove any connection in between M/s Pratik Traders and complainant. It is further contended that Ld Trial Court has failed to appreciate that payment was stopped by appellant and further failed to appreciate the facts and circumstances on which payment was got stopped. It is further contended that Ld Trial Court has failed to take note of the admission of the complainant that he had received some supplied goods back and therefore the entire transaction is doubtful and there were no recoverable dues against the appellant. It is further contended that Ld Trial court has passed the order contrary to the facts brought on record and further failed to consider the admission of the respondent that entire cheque was filled up by the respondent, which was raising a doubt to the extent that cheques were not issued in discharge of legally recoverable debt. It is further contended that Ld Trial Court wrongly held that appellant had filled up the cheque in question. It is further contended that the cheque in question were lying with the respondent as a blank instrument, which was used by the respondent illegally and wrongfully. It is further contended that in view of the above, judgment and order on sentence are not sustainable in the eyes of law, hence the same be set aside.
I have heard Ld counsel for appellant from Legal Aid and Ld counsel for the complainant and have gone through the TCR. CA No.64/12 2/4
During the course of arguments, matter has been settled between the parties with the intervention of the Court for a sum of Rs. 35,000/ has been paid by the appellant to the respondent today itself.
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.
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 18/08/2010 is set aside and compensation amount is modified to Rs. 2 lacs, as settled.
CA No.64/12 3/4
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 reasons in writing for such variance.
Ld counsel for respondent has submitted that respondent is aged about 48 years and is suffering failures of both the kidneys. He is unable to do any work, hence is unemployed. His wife is also unemployed. His son is doing some small job, out of which they are maintaining their house and medical expenses of the respondent, so the cost be exempted.
Considering the above facts and circumstances, as appellant remained unable to pay the amount since January 2008, I am of the opinion that the 15% cost of the cheque amount will cause hardship and burden upon the respondent. Accordingly, the cost is exempted.
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 6th of October, 2012 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi CA No.64/12 4/4 CA No.64/12 5/4 CA No.64/12 6/4