Himachal Pradesh High Court
Raj Kumar vs Shri Jai Chand And Anr on 14 June, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 130 of 2009
Date of Decision: 14.6.2016.
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______________________________ _____________________________
[
Raj Kumar .........Petitioner.
Versus
Shri Jai Chand and Anr. ............Respondents.
Coram
of
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?
For the petitioner:rt Mr. Neeraj Gupta, Advocate.
For the respondents: Mr. Rupinder Singh Thakur, Additional
Advocate General, for respondent No.2.
________________________________________________________
Sandeep Sharma, J. (Oral)
Present criminal revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the judgment of conviction recorded by learned Additional Sessions Judge, Solan, camp at Nalagarh in Criminal Appeal No. 50 NL/1 of 2008 dated 10.7.2009, whereby order of acquittal passed by learned Judicial Magistrate, Ist Class, Nalagarh, District Solan (HP) in Criminal Complaint No. 61/3 of 2005 dated 10.9.2008 has been reversed and set aside.
Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:34:56 :::HCHP -2-2. Briefly stated facts of the case are that complainant namely Jai Chand filed complaint under Section 138 of the .
Negotiable Instruments Act averring therein that petitioner (hereinafter referred to as 'the accused') had borrowed a sum of ` 28,000/- in the month of November, 2004, for the purpose of business. In order to discharge his legal liability, he issued cheque of bearing No. 0179583 dated 31.12.2004 amounting to ` 28,000/-, payable at the Jogindra Central Co-operative Bank, Branch at rt Soben Majra, Tehsil Nalagarh, District Solan, H.P., in favour of the respondent (hereinafter referred to as "the complainant.") Though, at the time of issuance of cheque, assurance was given to the complainant that cheque would be honoured on its presentation before its banker but cheque was dishonoured for want of insufficient funds. The complainant deposited the cheque issued in his favour by the accused in his Bank i.e. Bank of India, Branch Panjhera, for collection of cheque within a period of its validity but vide communication dated 22.2.2005, Bank intimated the complainant that the cheque cannot be honoured since there are insufficient funds in the account. Thereafter, the complainant immediately issued demand notice on 28.2.2005, ::: Downloaded on - 15/04/2017 20:34:56 :::HCHP -3- asking the accused for payment of aforesaid cheque within 15 days from the date of receipt of the notice, which was duly .
received by the accused on 28.2.2005. Since the accused failed to make payment within the stipulated period after receipt of notice, the complainant approached the court of learned Judicial Magistrate, Ist Class, Nalagarh, District Solan, HP, with the of complaint under Section 138 of the Negotiable Instruments Act.
The learned trial Court after satisfying itself that prima facie case rt exists against the accused, issued notice of accusation under Section 251 Cr.PC to the accused, to which he pleaded not guilty and claimed trial. The court below after recording the statements of the witnesses adduced on record by the complainant as well as statement of the accused under Section 313 Cr.PC concluded the trial and vide judgment dated 10.9.2008 acquitted the accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
3. Feeling aggrieved and dissatisfied with the judgment dated 10.9.2008 passed by the learned trial Court, the complainant/respondent approached the Court of learned Additional Sessions Judge Solan, Camp at Nalagarh, whereby the ::: Downloaded on - 15/04/2017 20:34:56 :::HCHP -4- appeal of the complainant was allowed and judgment of acquittal rendered by the learned trial Court was set-aside and .
the accused was sentenced to undergo six months' imprisonment and to pay fine of ` 5,000/- and in default, to undergo imprisonment of one month. The learned First Appellate Court further directed the accused to pay compensation to the tune of of ` 50,000/-.
4. Being dissatisfied and aggrieved with the judgment rt dated 10.7.2009, passed by the learned first appellate Court, the accused approached this Court by way of instant criminal revision petition.
5. Perusal of order dated 7.12.2015, passed by this Court suggests that matter was sent to Lok Adalat scheduled to be held on 12.12.2015 with the consent of the parties for amicable settlement, if any, but further perusal of the order dated 9.5.2016, depicts that matter could not be settled inter-se them as none of the party appeared before Lok Adalat. Today, when the matter was listed for final hearing, the petitioner/accused filed an application under Section 482 of the Cr.PC bearing Cr.PM No. 486 of 2016 praying therein for permission to compound the offence ::: Downloaded on - 15/04/2017 20:34:56 :::HCHP -5- on the basis of the compromise entered into between the parties.
By way of application, referred above, compromise occurred .
between the parties on 16.11.2009 has also been placed on record as Annexure P1 to the application. Perusal of the order sheet suggests that complainant despite being served, has failed to put in appearance in the Court. This matter was initially listed on of 11th September, 2009 when this Court while admitting the present petition issued notice to respondent No.2 but thereafter, rt respondent No. 2 failed to appear before the Court.
6. Perusal of the averments contained in the application portrays that since the parties to the petition could not turn up for settlement, if any, before the Lok Adalat held on 12.12.2015, matter could not be compromised and accordingly, matter was ordered to be listed for final hearing. However, on 9.5.2016, learned counsel sent intimation to the accused informing him qua the listing of the petition for final hearing. In response to the communication sent by the learned counsel representing the petitioner-accused, accused came to Shimla on 17.5.2016 and disclosed that parties (petitioner/accused and respondent No.1) has already reconciled the matter in Year, 2009 in terms of written ::: Downloaded on - 15/04/2017 20:34:56 :::HCHP -6- compromise (Annexure P-1) arrived at inter-se them. Perusal of the compromise suggests that parties to the lis had compromised the .
matter on 16.11.2009, whereby entire dispute involved in the present proceedings was amicably resolved between the petitioner-accused and respondent No1.
7. It has been specifically mentioned in the compromise of dated 16.11.2009 that complainant has received cheque amount of ` 28,000/- in the presence of witnesses and being satisfied, he rt does not intend to file further revision or any appeal against the accused namely Raj Kumar. It is further stated in the compromise that cheque bearing No. 0179583 dated 31.12.2004 amounting to ` 28,000/-, payable at the Jogindra Central Co-operative Bank, Branch at Soben Majra, Tehsil Nalagarh, District Solan, H.P. is cancelled and second party (accused) will not prosecute his appeal any further. Both the parties have stated in the compromise that they have entered into compromise on their own free will. In the aforesaid background, petitioner accused has filed application for compromise has referred above.
8. Perusal of the averments contained in the application, whereby compromise entered between the parties has been ::: Downloaded on - 15/04/2017 20:34:56 :::HCHP -7- placed on record, clearly demonstrates that parties have compromised the matter and the complainant has already .
received the amount of `28,000/- in terms of compromise arrived at inter-se the parties. Hence, it would be in the interest of justice and specifically in the spirit of law laid down by the Hon'ble Apex Court passed in Damodar S. Prabhu v. Sayed Babalal H. (2015) 5 of SCC 663, if the matter is ordered to be compounded at this stage.
9. In view of the compromise arrived at between the rt parties, judgment dated 10.7.2009 passed by learned Additional Sessions Judge, Solan, Camp at Nalagarh in Criminal appeal No. 50NL/1 of 2008 dated 10.7.2009 is set-aside and the accused is acquitted of the offence punishable under Section 138 of Negotiable Instruments Act. Bail bonds discharged. The petition is disposed of along with pending applications, if any.
June 14, 2016 (Sandeep Sharma),
manjit Judge.
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