Sunil Kumar vs Jasbir Singh on 17 October, 2023

[Cites 13, Cited by 0]

Himachal Pradesh High Court

Sunil Kumar vs Jasbir Singh on 17 October, 2023

Bench: Sushil Kukreja

                                          1


    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                       Criminal Revision No. 272 of 2023
                      Decided on: 17.10.2023
    ________________________________________________




                                                                               .
    Sunil Kumar                             ....Petitioner





                          Versus
    Jasbir Singh                          ...Respondent





    Coram
    The Hon'ble Mr. Justice Sushil Kukreja, Judge.
    Whether approved for reporting?1




                                                    of
    For the petitioner:                       Mr. S.C. Sharma, Sr. Advocate,
                                              with Mr. Arvind Negi, Advocate.

    For the respondent: rt       Mr. Mohit Jaitak, Advocate.
    ________________________________________________
    Sushil Kukreja, Judge (oral)

The instant petition has been filed by the petitioner-accused under Section 397/401 of the Code of Criminal Procedure (for short 'Cr.P.C.') against judgment dated 05.04.2023, passed by learned Sessions Judge, Una, District Una, H.P., in Criminal Appeal No. 2/2023, whereby the judgment of conviction and order of sentence dated 29.11.2022, passed by learned Additional Chief Judicial Magistrate, Court No. 1, Una, District Una, H.P., in Complaint Case No. 25/2 of 2020, was affirmed.

2. The brief facts, giving rise to the present petition, can succinctly be summarized as under:

Whether reporters of Local Papers may be allowed to see the judgment?

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3. In the year 2014, the accused-Sunil Kumar approached the complainant-Jasbir Singh and persuaded him to start recurring deposit of Rs.200/- per day. The .

accused assured the complainant that on maturity he will get handsome amount. On the persuasion of the accused, the complainant started depositing Rs.200/- per day and on 15.11.2019 the accused, in order to discharge his liability of towards the complainant, issued cheque bearing No. 799427, amounting to Rs.50,000/-, drawn at Punjab National rt Bank, branch at Tahliwal, District Una, H.P. However, the aforesaid cheque, on being presented for encashment, was dishonored with the remarks "funds insufficient". Thereafter, the complainant served legal notice, dated 19.12.2019, upon the accused, but the accused did not make any payment to the complainant. Resultantly, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter, for the sake of brevity, referred to as the "NI Act") before the learned Trial Court.

4. The learned Trial Court after conclusion of the trial convicted the accused under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for a period of one year and to pay a sum of Rs.60,000/- as compensation to the complainant.

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5. Being dissatisfied, the accused/petitioner/convict preferred an appeal before the learned Lower Appellate Court, which was dismissed and the judgment of the learned .

Trial Court was upheld. Hence, accused/petitioner/convict-

Sunil Kumar preferred the instant petition under Section 397/401 Cr.P.C. with a prayer that his petition may be allowed and the impugned judgments and order of sentence of passed by the learned Courts below may be set-aside and he be acquitted.

6. rt During the pendency of the instant petition, an application (Cr.MP No. 3977 of 2023) under Section 482 Cr.P.C. read with Section 147 of the NI Act has been filed by the petitioner-accused seeking permission of this Court to compound the offence by setting-aside the judgment of conviction and order of sentence dated 29.11.2022, passed by learned Additional Chief Judicial Magistrate, Court No. 1, Una, District Una, H.P., in Complaint Case No. 25/2 of 2020 and affirmed vide judgment dated 05.04.2023, passed by learned Sessions Judge, Una, H.P., in Criminal Appeal No. 2/2023.

7. Today, the complainant-Jasbir Singh is present in person before this Court and his statement has been recorded and separately placed on the file.

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8. In his statement, the complainant-Jasbir Singh stated that he had filed a complaint against the petitioner under Section 138 of the NI Act, bearing complaint Case No. .

25/2 of 2020, titled Jasbir Singh vs. Sunil Kumar, before Court No. 1, Una, District Una, H.P. and the learned Trial Court had convicted the petitioner-accused, vide judgment of conviction and order of sentence dated 29.11.2022 for of commission of the offence under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for a rt period of one year and to pay compensation of Rs.60,000/-

and the learned Sessions Judge, Una, District Una, H.P., had affirmed the findings of the Trial Court, vide judgment dated 05.04.2023. He has further stated that during the pendency of the present revision petition, he has compromised the matter with the petitioner-accused as he has deposited the entire amount of compensation before the learned Trial Court. He has also stated that in view of the compromise, he does not intend to pursue his complaint under Section 138 of the NI and has no objection in case the judgment of conviction and order of sentence dated 29.11.2022, passed by the learned Additional Chief Judicial Magistrate, Court No. 1, Una, District Una, H.P. and affirmed by the learned Appellate Court, vide judgment dated ::: Downloaded on - 18/10/2023 20:39:13 :::CIS 5 05.04.2023, are quashed and set-aside and the petitioner-

accused is acquitted of the offence punishable under Section 138 of the NI Act.

9. I have heard the learned counsel for the parties and have also gone through the material available on record.

10. Having taken note of the fact that the petitioner-

accused has deposited the entire compensation amount of before the learned Trial Court, as awarded by the learned Trial Court, and the respondent-complainant has no objection rt in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accused-petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon'ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H., (2010) 5 SCC 663, wherein the Hon'ble Apex Court has held as under:-

"10. At present, we are of course concerned with Section 147 of the Act, which reads as follows:-

"147. Offences to be compoundable- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable."

At this point, it would be apt to clarify that in view of the non-obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of ::: Downloaded on - 18/10/2023 20:39:13 :::CIS 6 Criminal Procedure (hereinafter "CrPC") will not be applicable in the strict sense since the latter is meant for the specified offences under the Indian Penal Code, 1860.

11. So far as the CrPC is concerned, Section 320 .

deals with offences which are compoundable, either by the parties without the leave of the court or by the parties but only with the leave of the Court. Sub-section (1) of Section 320 enumerates the offences which 9 are compoundable without the leave of the Court, while subsection (2) of the said section specifies the offences which are compoundable with the leave of the Court.

12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as rt an exception to the general rule incorporated in sub-section (9) of Section 320 of the CrPC which states that 'No offence shall be compounded except as provided by this Section'. A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Indian Penal Code also cannot be compounded.

However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause."

11. In K. Subramanian Vs. R. Rajathi, (2010) 15 Supreme Court Cases 352, it has been held by the Hon'ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction. The relevant portion of the judgment is reproduced as under:-

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"6. Thereafter a compromise was entered into and the petitioner claims that he has paid Rs. 4,52,289 to the respondent. In support of this claim, the petitioner has produced an affidavit sworn by him on 1.12.2008. The petitioner has also produced an affidavit sworn by P. Kaliappan, Power of .

attorney holder of R. Rajathi on 1.12.2008 mentioning that he has received a sum of Rs.

4,52,289 due under the dishonoured cheques in full discharge of the value of cheques and he is not willing to prosecute the petitioner.

7. The learned counsel for the petitioner states at the Bar that the petitioner was arrested on 30.7.2008 and has undergone the sentence imposed on him by the trial Court and confirmed by of the Sessions Court, the High Court as well as by this Court. The two affidavits sought to be produced by the petitioner as additional documents would indicate that indeed a compromise has taken place between the petitioner and the respondent and the rt respondent has accepted the compromise offered by the petitioner pursuant to which he has received a sum of Rs.4,52,289. In the affidavit filed by the respondent a prayer is made to permit the petitioner to compound the offence and close the proceedings.

8. Having regard to the salutary provisions of Section 147 of the Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, this Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code."

12. Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has compromised the matter with the complainant and has deposited the entire compensation amount before the learned Trial Court, as ordered by the learned trial Court, prayer for compounding the offence can be accepted in ::: Downloaded on - 18/10/2023 20:39:13 :::CIS 8 terms of the aforesaid judgments passed by the Hon'ble Apex Court.

13. Therefore, in view of the detailed discussion .

made hereinabove as well as law laid down by the Hon'ble Apex Court, the application is allowed and matter is ordered to be compounded.

14. Accordingly, the present matter is ordered to be of compounded and the impugned judgment of conviction and order of sentence dated 29.11.2022, passed by the learned rt Additional Chief Judicial Magistrate, Court No. 1, Una, District Una, H.P., in Complaint Case No. 25/2 of 2020 and affirmed by learned Sessions Judge Una, District Una, H.P., vide judgment dated 05.04.2023, in Criminal Appeal No. 2/2023, is quashed and set-aside and the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act. Bail bonds, if any, stand discharged.

15. The learned Trial Court is directed to release the amount, which had been deposited by the accused-

petitioner, in favour of the complainant-Jasbir Singh, after due verification.

16. Undisputedly, the total amount of cheque is Rs.50,000/-, however, the learned counsel for the petitioner ::: Downloaded on - 18/10/2023 20:39:13 :::CIS 9 submitted that the petitioner is a poor person and the imposition of compounding fee may be reduced.

17. In case K. Subramanian vs. R. Rajathi (supra), .

the Hon'ble Apex Court had issued the guidelines with respect to the imposition of compounding fee, which read as under:-

"THE GUIDELINES of

(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 rt 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 Curt 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.

... ... ... ... ... ... ...

25. 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 ::: Downloaded on - 18/10/2023 20:39:13 :::CIS 10 the Code of 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. Bona fide litigants should of course contest the proceedings to their logical end."

18. Therefore, taking into consideration the law laid down by the Hon'ble Apex Court (supra) and the financial of condition of the petitioner, as he is a poor person, since the competent Courts can reduce the compounding fee with rt regard to the specific facts and circumstances of the case, the petitioner is directed to deposit token compounding fee of Rs.2,000/- (rupees two thousand), only with the District Legal Services Authority, Una, District Una, H.P., within four weeks from today.

19. The petition stands disposed of accordingly, so also the pending miscellaneous application(s), if any.

( Sushil Kukreja ) th 17 October, 2023 Judge (virender) ::: Downloaded on - 18/10/2023 20:39:13 :::CIS

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