Himachal Pradesh High Court
Ram vs Nihal on 27 June, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
ON THE 27th DAY OF JUNE, 2022
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL REVISION NO. 171 OF 2021
Between:-
SH. VIJAY KUMAR SON OF SHRI SURAT
RAM, RESIDENT OF VILLAGE GAJIYANI,
PO SINDASLI, TEHSIL CHIRGAON,
DISTRICT SHIMLA H.P.
....PETITIONER
(BY SHRI TOPENDER KUMAR VERMA, ADVOCATE)
AND
SHRI NIHAL CHAND SON OF LATE SHRI
NEHAR SINGH, RESIDENT OF VILLAGE
JAKHI, PO KHASHADHAR, TEHSIL
CHIRGAON, DISTRICT SHIMLA HP
...RESPONDENT
(BY SH.BALWANT SINGH THAKUR, ADVOCATE)
Whether approved for reporting?
This Petition coming on for order this day, this Court passed the
following:
JUDGMENT
Present revision petition has been filed assailing judgment dated 17.12.2020 passed by learned Sessions Judge (Forests), Shimla, District Shimla (HP), in Cr. Appeal No. 34-R/10 of 2019, whereby judgment/order dated 1.10.2019/30.10.2019 titled as Vijay Kumar vs. Nihal Chand passed by learned Additional Chief Judicial ::: Downloaded on - 04/07/2022 20:01:21 :::CIS 2 Magistrate, Court No.1, Rohru, District Shimla H.P., in Criminal Complaint case No. 154-3 of 2017 titled Nihal .
Chand vs. Vijay Kumar, convicting and sentencing the petitioner/accused to undergo simple imprisonment for a period of one year and to pay compensation of Rs.6,20,000/- to the complainant, has been affirmed.
2. Accused/petitioner Vijay Kumar and complainant/respondent Nihal Chand were present on 16.6.2022 as well as today in person, who have been identified by their learned counsel. Their statements, on oath, have been recorded and placed on the file.
3. In his statement recorded on oath on 16.6.2022, complainant/respondent Nihal Chand had stated that matter had been amicably settled between him and petitioner for Rs.4,25,000/- against awarded compensation of Rs.6,20,000/-, and out of which, he had received Rs.3,00,000/- and petitioner had agreed to pay remaining amount i.e. Rs.1,25,000/- on or before next date of hearing and in turn, respondent was ready to withdraw the complaint for compounding the case and in lieu of that, he had received a cheque No. 000049 dated 10.12.2022 of Rs.1,00,000/- from petitioner drawn at UCO Bank and the said cheque would be returned to the petitioner on payment of Rs.1,25,000/- on or before next date of hearing. ::: Downloaded on - 04/07/2022 20:01:21 :::CIS 3
4. The petitioner/accused, vide separate statement placed on record, had endorsed the statement .
made by complainant/respondent as true and correct with promise to pay Rs.1,25,000/- on or before 27.6.2022 to complainant and had also prayed for exemption of compounding fee as he had to arrange money for payment to complainant by borrowing the same from his near relatives and friends.
5
statement, complainant Today, on 27.6.2022, vide his another separate has endorsed receipt of Rs.1,25,000/- from petitioner in cash and as per terms of compromise, he has returned the cheque No. 000049 dated 10.12.2022 of Rs.1,00,000/- to petitioner and has prayed for permission to withdraw his complaint for compounding the case.
6 The petitioner/accused has also, vide his separate statement, endorsed the statement of complainant/respondent as true and correct stating that he has paid an amount of Rs.1,25,000/- to complainant in cash and as per terms of compromise, complainant has also returned cheque No. 000049 dated 10.12.2022 of Rs.1,00,000/- to him. He has prayed for compounding the case with further prayer that keeping in view his financial ::: Downloaded on - 04/07/2022 20:01:21 :::CIS 4 condition, he may be exempted from paying compounding fee.
.
7. Both complainant as well as petitioner/accused have stated that they have deposed in the Court and have compromised the matter out of their free will, consent, and also without any kind of threat, coercion or pressure etc.
8. Consequently, to respondent/complainant permitted to withdraw the complaint and matter is compounded and complaint arising out of dishonour of is cheque under Section 138 of Negotiable Instruments Act is treated to be withdrawn and judgments of conviction and sentence passed by learned Courts below are quashed and set aside. Petitioner/accused is acquitted of the accusation framed against him.
9. Petitioner has prayed for exempting him from paying compounding fee on the ground that he is not in a position to deposit 15% of cheque amount as compounding fee, because he has arranged the money for payment to complainant by borrowing the same from his near relatives and friends. It is submitted by counsel for the petitioner that considering the ratio of law laid down by the Apex Court in Damodar S.Prabhu vs. Sayed Babalal H. (2010)5 SCC 663, the Apex Court in Madhya ::: Downloaded on - 04/07/2022 20:01:21 :::CIS 5 Pradesh Legal Services Authority vs. Prateek Jain and another (2014)10 SCC 690 wherein it has been .
held that Court may reduce compounding fee for given facts and circumstances of a particular case, compounding fee may be exempted.
10. In present case, the amount of compensation has been awarded to the tune of Rs.6,20,000/-but the petitioner/accused has matter has been compounded and settled against the payment of Rs. 4,25,000/- to the complainant.
paid Rs.4,25,000/- to
As the
the
complainant for which complainant has agreed to settle
the matter for amount lesser than awarded compensation because of poor financial condition of petitioner. Considering entire facts and circumstances, I am of the opinion that it is an appropriate case to impose lesser compounding fee. Therefore, petitioner is directed to deposit compounding fee of Rs.2,000/- instead of 15% of cheque amount, with the H.P. State Legal Services Authority, Shimla within a period of four weeks from today.
11. After depositing compounding fee, petitioner shall place a copy of receipt of deposit of compounding fee on record of this petition. In case of default in depositing compounding fee/cost with H.P. State Legal Services Authority, Shimla within four weeks from today, the ::: Downloaded on - 04/07/2022 20:01:21 :::CIS 6 consequential action shall follow to recover the said amount as fine under Cr.P.C.
.
12. Petition stands disposed of, in the aforesaid terms, so also the pending application(s), if any.
The parties are permitted to produce copy of order downloaded from the High Court website before the concerned authority and the said authority shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
Copy of this judgment be sent to H.P. State Legal Services Authority, Shimla for compliance.
June 27, 2022 (Vivek Singh Thakur)
(ms) Judge
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