Himachal Pradesh High Court
Subhadra Thakur vs Himachal Gramin Bank And Another on 30 October, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 65 of 2016 .
Date of decision: 30th October, 2018
Subhadra Thakur .......Petitioner.
Versus
Himachal Gramin Bank and another ......Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? 1 No For the Petitioner : Mr. Mohan Sharma, Advocate.
For the Respondents : Ms. Devyani Sharma, Advocate, for respondent No.1.
Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Addl. A.Gs. with Mr. Bhupinder Thakur Dy. A.G., for respondent No.2.
Tarlok Singh Chauhan, Judge (Oral).
Looking to the nature of order, I propose to pass, it is not at all necessary to delve into the facts in detail. Suffice it to state that the complainant/respondent No.1 instituted a complaint under Section 138 of the Negotiable Instruments Act (for short 'Act') against the petitioner on the allegations that in order to liquidate the overdue amount, the petitioner issued a cheque bearing No.120941 for a sum of Rs.2,30,000/- on 7.2.2012 to the complainant/respondent No.1-Bank. But the said cheque was dishonoured by the bank on its presentation on the ground of 'insufficient funds'. The complaint was decided in favour of respondent 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 31/10/2018 22:56:46 :::HCHP No.1/complainant by the learned trial Magistrate and the petitioner was sentenced to undergo simple imprisonment for a period of nine months .
and to pay a compensation of Rs. 2,70,000/- to the complainant.
2. Aggrieved by the judgment of conviction and sentence passed by the learned trial Magistrate on 9.12.2014, the petitioner preferred an appeal before the learned Additional Sessions Judge (1), Mandi, Camp at Karsog, District Mandi, H.P. in Criminal Appeal No.09/2015,76/14, however, the same came to be dismissed vide judgment dated 7.1.2016, constraining the petitioner to file the instant revision petition.
3. Today, when the case was taken up, the learned counsel for the petitioner stated that a sum of Rs.30,000/- has been handed over to Ms. Devyani Sharma, learned counsel for respondent No.1/Bank, in cash, and a sum of Rs.27,000/-already stands deposited by the petitioner in the trial Court and the matter has been settled between the parties. This statement of learned counsel for the petitioner is not disputed by Ms. Devyani Sharma, learned counsel for respondent No.1/complainant.
She stated that the amount deposited by the petitioner in the trial Court may be released in favour of the complainant/respondent No.1-Bank.
Since the petitioner has deposited the entire compensation amount of Rs.2,70,000/- therefore, the matter can be given quietus in terms of the judgments rendered by the Hon'ble Supreme Court.
4. This court is not powerless in such situation and adequate powers have been conferred upon it not only under section 397 read with ::: Downloaded on - 31/10/2018 22:56:46 :::HCHP Section 401 or Section 482 Cr.P.C. (hereinafter referred to as the Code) but also under Section 147 of the Act for accepting the settlement entered .
into between the parties and to quash the proceedings arising out of the proceedings, which have consequently culminated into a settlement. This power has been conferred to subserve the ends of justice or/and to prevent abuse of the process of any Court. Though, such power is required to be exercised with circumspection and in cases which do not involve heinous and serious offence of mental depravity or offences like murder, rape, dacoity etc.
5. The moot question is whether the Court in such like cases can set aside the judgments of conviction and sentence where the petitioner has been charged under Section 138 of the Act. This question need not detain this Court any longer in view of the three Judges Bench decision of the Hon'ble Supreme Court in Parbatbhai Aahir @ Parbatbhai and others versus State of Gujarat and another, Criminal Appeal No. 1723 of 2017, decided on 4 th October, 2017, wherein after taking into consideration the entire law on the subject, the Hon'ble Supreme Court has laid down the following broad principles for exercise of powers under Section 482 of the Code which read thus:-
"(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;::: Downloaded on - 31/10/2018 22:56:46 :::HCHP
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground .
that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non- compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the ::: Downloaded on - 31/10/2018 22:56:46 :::HCHP overriding element of public interest in punishing persons for serious offences;
.
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
6. Apart from the above, it shall be apposite to make note of another recent judgment of the Hon'ble Supreme Court in Meters and Instruments Private Limited and another versus Kanchan Mehta (2018) 1 SCC 560 wherein after taking into consideration the object of ::: Downloaded on - 31/10/2018 22:56:46 :::HCHP introducing Section 138 and other provisions of Chapter XVII in the Act in the year 1988, it was observed as under:-
.
"18. From the above discussion following aspects emerge:
18.1. Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.
18.2. The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.
18.3. Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.
18.4. Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after ::: Downloaded on - 31/10/2018 22:56:46 :::HCHP considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) .
Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases.
18.5. Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings.
The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances."
7. It is evident from the aforesaid judgment that this Court after being satisfied that the cheque amount with the assessed cost and interest has been paid, can close the proceedings even in absence of the complainant.
8. The issue is no longer res integra in view of the very recent judgment of the Hon'ble Supreme Court in Bhangu Trading Co. and another versus Surjit Singh (dead) through LRs, Criminal Appeal Nos.
808 and 809 of 2018 decided on 02.07.2018 and in terms of the ::: Downloaded on - 31/10/2018 22:56:46 :::HCHP subsequent judgment in N.P. Murugesan versus C. Krishnamurthy, Criminal Appeal No.818 of 2018, decided on 04.07.2018, wherein it was .
observed as under:-
"Leave granted.
2. The appellant is before this Court aggrieved by the conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881.
3. Today, when the matter came up before this Court, we are informed that the cheque amount has already been paid and it is acknowledged by the respondent.
4. In the peculiar facts and circumstances of this case, we are of the view that for doing complete justice the whole litigation should be given a quietus, subject to appropriate terms.
5. Accordingly, we set aside the conviction and sentence imposed on the appellant and allow the appeal...."
9. Since, the petitioner has already paid the entire compensation amount, therefore, quashing of the complaint initiated at the instance of complainant/respondent No.1 would be a step towards securing the ends of justice and to prevent abuse of process of the Court, especially, when the petitioner is facing pangs and suffered agony of protracted trial and thereafter appeal/revision for the last more than three years and has deposited the entire compensation amount of Rs.2,70,000/-.
10. Thus, taking holistic view of the matter and further taking into consideration all the attending facts and circumstances as also the law laid down by the Hon'ble Supreme Court in Parbatbhai Aahir, Kanchan ::: Downloaded on - 31/10/2018 22:56:46 :::HCHP Mehta, Bhangu Trading Co., and N.P. Murugesan cases (supra), I find this to be a fit case to exercise the powers not only under Sections 397, .
401 and Section 482 of the Code, but even under Section 147 of the Act.
11. In view of the above discussion, it is ordered that the impugned substantive sentence of simple imprisonment imposed in this case shall stand modified and substituted in lieu of the amount of compensation of Rs.2,70,000/- that stands already paid by the petitioner.
The learned trial Court is also directed to release the amount of Rs.27,000/- deposited in this case by the petitioner to complainant /respondent No.1-Bank as per procedure.
12. With these observations, the revision petition stands disposed of, so also the pending application, if any.
30th October, 2018. (Tarlok Singh Chauhan),
(GR) Judge
::: Downloaded on - 31/10/2018 22:56:46 :::HCHP