Delhi District Court
Shyam Sunder vs Satin Credit Care Network Ltd on 20 April, 2013
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Appeal No. 92/12
Unique case ID No. 02404R0295092012
Shyam Sunder
S/o Sh. Ganesh Lal
R/o 218, Ghee Mandi,
Pahar Ganj, New Delhi55
Also at: C/0 M/s. Aishwarya Export & Import
646, Fancy Cloth Market, Main Bazar,
Pahar Ganj, New Delhi55
...Appellant
Versus
Satin Credit Care Network Ltd.
Having its registered office at 306,
Lusa Tower, Azadpur commercial Complex,
Delhi110033
Through its Authorised Representative
Mr. Shyam Sunder, officer (Legal)
.....Respondent
Date of institution of the case: 31/10/2012
Arguments heard on: 22/11/2012
Date of Decision: 20/04/2012
JUDGMENT
This is a criminal appeal u/s 374 of Cr.PC filed against the impugned judgment and order on sentence dated 21/09/2012 and 04/10/2012 CA No. 92/12 1/4 passed by the Ld Trial Court.
In brief, in a case filed U/s. 138 of Negotiable Instruments Act, appellant was convicted and was awarded imprisonment for two months alongwith compensation of Rs. 1,00,000/ payable to the complainant within one month. In default of payment of fine, he shall further undergo simple imprisonment for a period of one month.
Both impugned judgment and order on sentence have been challenged on various grounds. It is contended that judgment and order on sentence are against the facts available on record and the learned Trial Court failed to consider the same, hence are liable to be set aside. It is further contended that learned Trial Court failed to appreciate that the valuable rights of the convict/appellant to lead evidence in his defence cannot be curtailed and erred, while passing the order of dismissing application U/s. 315 Cr.P.C. It is further contended that learned Trial Court erred in appreciating the fact that the case is based on fabricated and manipulated cheque. It is further contended that learned Trial Court failed to appreciate that leading of defence evidence is a vital tool to discern the whole falsity of the allegations levelled by the complainant against the appellant. It is further contended that learned Trial court failed to appreciate that in absence of the defence evidence, a great miscarriage of justice will be caused to the appellant. It is further contended that learned Trial Court failed to exercise the jurisdiction and power as conferred upon it and failed to appreciate that by not allowing the appellant to lead defence evidence, the trial will be vitiated.
I have heard Ld Counsel for the appellant and Ld Counsel for respondent and have also gone through the TCR.
CA No. 92/12 2/4
On 22/11/2012, during the course of arguments, matter has been settled between the parties with the intervention of the Court for a sum of Rs. 1,00,000/ with litigation cost of Rs. 5000/ to the respondent in four monthly installments of Rs. 25,000/ each and a separate cheque of Rs. 5000/ of litigation cost to counsel for respondent. Accordingly, installment of Rs. 25,000/ each was paid by the appellant to the respondent on 07/12/2012, 11/01/2013, 16/02/2013 and also today on 20/04/2013 with cash of Rs. 5000/ of litigation cost.
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.
CA No. 92/12 3/4
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 of imprisonment as imposed by Ld Trial Court vide order dated 04/10/2012 is set aside and compensation amount is paid with litigation cost of Rs. 5000/.
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.
Considering the above facts and circumstances, as appellant remained unable to pay the amount for quite a long time and his mother is going to be operated for heart ailment, so, he is unable to pay any cost, I am of the opinion that no cost be imposed considering the facts and circumstances of the appellant/accused.
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 20th of April, 2013 (Virender Kumar Goyal)
Additional Sessions Judge
Fast Track Court
Rohini : Delhi
CA No. 92/12 4/4
CA No. 92/12 5/4
CA No. 92/12 6/4