Himachal Pradesh High Court
Gurpreet Singh vs Kapil Expo Trade Pvt. Ltd on 11 June, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 50 of 2018.
Reserved on: 30th May, 2018.
.
Date of Decision: 11th June, 2018.
Gurpreet Singh .... Petitioner.
Versus
Kapil Expo Trade Pvt. Ltd. ....Respondent.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?
For the Petitioner: Ms. Anu Tuli, Advocate.
For the Respondent: Mr. P. S. Goverdhan, Advocate.
Sureshwar Thakur, Judge The instant criminal revision petition, is directed, against, the concurrently recorded findings, whereby, both the learned Courts below, convicted besides sentenced the accused/petitioner, for his committing an offence punishable under Section 138, of the Negotiable Instruments Act.
::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 22. The facts relevant to decide the instant case are that the complainant is a private limited company and deals in sale and trade construction material. The .
accused/petitioner herein requested the complainant to sell the material on credit basis. The accused purchased total material of Rs.3,61,838/- from the complainant against various bills/invoices on different dates, as detailed in the complaint, bills/invoices whereof, bear his signatures.
r On 30.05.2010, the
accounts were settled and total amount of
Rs.3,61,838/- was found due against the accused. The accused in order to discharge his liability issued two cheques No.001172 of 30.05.2010 amount to Rs.50000/- of the ICICI Bank, Solan and cheque No.001173 of 1.6.2010 amounting to Rs.3,11,838/-.
The accused assured the complainant that the cheque will be encashed on presentation. However, the cheque bearing No.0011072 of 30.05.2010 amounting to Rs.50000/- on presentation stood returned to the complainant along with memo of 20.11.2010 with endorsement "insufficient funds'. It is submitted that the complainant intimated this fact to the accused, who ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 3 requested the complainant that he was facing financial crunches in these days and requested to present the said cheque after some time. The complainant again .
presented the cheque in his account and his banker forwarded the cheque for collection to ICICI Bank, Solan but the cheque was again dishonoured due to the reason of "funds insufficient. The bank of the complainant intimated, it about the non encashment of the cheque vide memo of 26.11.2010. It is submitted that the accused deliberately and intentionally issued bogus cheque in favour of the complainant, knowing that he was not having sufficient funds in his account, so as to get the payment clear. It is submitted that a legal notice of 13.12.2010 was posted on 14.12.2010 through the registered post vis-a-vis the accused, but the accused did not make the payment of the cheque amount. Hence the complaint.
3. Notice of accusation, stood put, to the accused/petitioner herein, by the learned trial Court, for his committing an offence, punishable under Section 138 of the N. I. Act. In proof of its case, the complainant examined two witnesses. On conclusion of ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 4 recording, of, the complainant's evidence, the statement of the accused, under Section 313 of the Code of Criminal Procedure was recorded by the .
learned trial Court, wherein, he claimed innocence, and, pleaded false implication.
4. On an appraisal of the evidence on record, the learned trial Court, returned findings, of, conviction upon the accused/respondent herein, for his committing, an, offence punishable under Sections 138 of the Negotiable Instruments Act. In an appeal preferred therefrom, by the accused/respondent herein, before, the learned Sessions Judge concerned, the latter, affirmed the apposite findings of conviction, and, sentence recorded in the judgment, pronounced, by the learned trial Court.
5. The accused/petitioner herein, stands aggrieved, by the findings recorded, by the learned Sessions Judge concerned, bearing concurrence vis-a-
vis, the judgment, of conviction recorded against him, by the learned trial Court. The learned counsel appearing, for the petitioner/accused herein, has concertedly and vigorously contended qua the findings ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 5 of conviction, recorded by the learned Sessions Judge concerned, standing not based on a proper appreciation, by him, of the evidence on record, rather, .
theirs standing sequelled by gross mis-appreciation, by him, of the material on record. Hence, he contends qua the findings of conviction rather warranting reversal, by this Court, in the exercise of its revisional jurisdiction, and, theirs being replaced by findings of acquittal.
6. On the other hand, the learned r counsel appearing, for the respondent/complainant, has, with considerable force and vigour, contended qua the findings of conviction recorded by the learned Courts below, standing based, upon a mature and balanced appreciation, by them, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication.
7. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
8. The contention, reared, by the learned counsel appearing for the petitioner, is, rested upon (a) of with the complainant, vis-a-vis, the amount borne, in, ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 6 the dishonoured negotiable instrument, instituting a civil suit, for its recovery, before, the learned Civil Judge (Sr. Division), Court No.1, Kasauli, suit whereof stood, .
registered as Civil Suit No.01/01 of 2012, and, with the learned trial Court rendering thereon, an affirmative decree, borne in Ex. Dx-1, AND, thereafter, as reflected by Ex. Dx-2, the money decree rendered in Civil Suit No. 01/01 of 2012, being satisfactorily executed, (b) hence, thereupon, with, the entire amount, borne, in the dishonoured negotiable instrument being fully satisfied, and, realized by the respondent/complainant; (c) thereupon, the concomitant sequel thereof, being an implied composition of the offence, arising, from the dishonour of negotiable instrument, rather occurring, inter se the petitioner/convict, and, the respondent/complainant, (d) thereupon, this Court, also accepting the implied composition, of offence, occurring inter se the litigating parties, and, thereafter its quashing, and, setting aside, the verdicts of conviction, and, consequent sentence imposed, upon, the petitioner/accused. In making the aforesaid submission, the learned counsel appearing, for the ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 7 petitioner/accused, has, placed reliance, upon, a judgment, of, the Hon'ble Apex Court, rendered, in M/s Meters and Instruments Private Limited vs. .
Kanchan Mehta, Cr. Appeal No. 1732 of 2017, the relevant paragraph No. 18(i) to 18(iii) stand extracted hereinafter:-
"18. From the above discussion following aspects emerge:-
i) 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 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.
ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 8 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.
Iii) Though compounding requires consent of both parties, even in the 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."
wherein it stands expostulated (a) of the endeavours, for, composition of offence, embodied, in Section 138, of the Negotiable Instrument Act, being encouraged, at the initial stage, and, thereafter also subject to determination, of appropriate compensation, the courts, above, the trial court, being also empowered, to make an order, for compounding, the offences, arising, from the dishonour, of, negotiable instrument; (b) of the learned trial Magistrate upon "being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused", phrase whereof, occurring, in relevant sub ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 9 para (iii), of the verdcit (supra), carrying, obviously the apt signification (a) of, the courts hence encouraging, composition of offence(s), at the initial stage; (b) of .
courts superior, to, the trial Court, being vested with jurisdiction, to order for composition of the apt offence, subject to determination of an appropriate compensation, vis-a-vis, the complainant, and, (c) of the empowerment, for closing the proceedings, arising, from cognizance being taken, upon, the complaint, by the Magistrate concerned, and, thereafter qua discharge, of, the accused, being also empowerments rather solitarily vesting, in the trial court concerned, (d) especially, when the order(s), qua closure of proceedings, after cognizance being taken, on, the complaint, and, order qua subsequent discharge thereto, of, the accused, can only occur, before the learned Magistrate concerned, hence are renderable, only, by the latter (e) whereas, the Courts superior, to the learned trial Magistrate, though, being empowered, to, make an order for composition of offence(s), and, concomitantly, for ordering, for reversal of the verdict, of, the learned trial Court, (f) yet, Courts superior, to ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 10 the learned trial Court, not holding jurisdiction, obviously hence, to close the proceedings, after, apt cognizance being taken, upon, the apposite complaint .
nor also theirs hence holding any jurisdiction, to, discharge the accused, rather theirs after making an order, for, composition of the offence, theirs holding, the apt jurisdiction to quash hence verdicts, of, conviction and consequent thereto imposition, of sentence, upon the convict. If so, the making, of, the aforesaid, cullings, of, the spirit carried, by the aforesaid extracted apt portion, of paragraph No.18, of, the judgment relied, upon, by the learned counsel appearing, for the appellant/accused, (i) hence, thereupon, nowat it is to be determined, whether evidence, in display of the essential element, of, consensus ad idem or the bonafides, of the petitioner, to liquidate the sum, comprised, in the dishonoured negotiable instrument, hence surging forth or rather contrary therewith, hence, evidence, surging forth. The apposite bonafide, and, consensus ad idem, hence, ingraining, the aforesaid redemption(s), is, reiteratedly espoused, to, erupt, from, the conduct of the ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 11 petitioner/convict, in his after the affirmative decree, being rendered, by the Civil Court, upon, the plaintiff's suit, for realization of sums, of, money borrowed, from .
it, his thereafter ensuring its satisfaction, besides from his depositing, the entire compensation amount, as, assessed, upon him. However, no conclusion, can be drawn, qua in the petitioner/convict, after, rendition of an affirmative decree, by the civil court, vis-a-vis, the plaintiff's suit, instituted against him, for recovery(ies), of the amount borne, in the dishonoured negotiable instruments, and his, thereafter ensuring satisfactory realization thereof, from his assets, his rather hence evincing bonafides, and, his apt consensus ad idem, with, the respondent/complainant. The reason being
(a) the institution, of, a civil suit being an event subsequent, to the institution, of the apposite complaint, (b) and, his rearing an acid contest therein;
(c) the mere factum, of his, rather rearing an acid contest, vis-a-vis, the plaintiff's suit, for recovery of money, rather erodes the substratum, of his espousal, of his holding conciliatory overtures, to the respondents/complainant, and, also overrides, all the ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 12 effect of all his propagations, of, realization(s), through, coercive processes, from, his assets, the amount borne, in the dishonoured negotiable instruments, being .
construable or tantamounting, to be
compository/conciliatory realization(s), hence
occurring inter se him, and, the complainant. More so, even when without, his hotly contesting, the apposite civil suit, he could well have made an apt tenable endeavour, before, the learned trial Magistrate, for composition of the offences, (d) whereas, contrarily, his contesting, the civil suit, renders him disabled, to derive any capitalization therefrom nor in garb, of, coercive execution, of the decree of the civil court, vis-a-vis, the amounts, borne in the dishonoured negotiable instrument, he is enabled , to, contend, that per se thereupon, an apt amicable compository settlement rather occurring, hence, this Court, proceedings to quash and set aside, the concurrent verdicts recorded against him, by both, the learned Courts below.
9. Dehors the aforesaid conclusions, formed, by this Court, given, the Hon'ble Apex Court in a case titled as P. Ram Das vs. State of Kerala and another, ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 13 reported in (2018)3 SCC 287, relevant paragraph No.8, 9 and 10 whereof, stand extracted hereinafter:-
"8. Considering the fact that the appellant has complied with the direction given by this Court vide order dated .
15.1.2018 and taking overall view of the matter, we are of the opinion that interest of justice would be subserved, if the order regarding simple imprisonment of three months is modified and in lieu thereof, additional compensation amount of Rs.1,00,000/- (Rupees one lakh only), already deposited by the appellant before the trial Court is directed to be made over to Respondent No.2.
In other words, Respondent No.2 is free to withdraw the additional compensation amount of Rs.1,00,000/- (Rupees one lakh only) already deposited by the appellant before the trial Court. This amount be paid to Respondent No.2 subject to verification of his identity.
9. We are conscious of the fact that Respondent No.2 complainant has not appeared before this Court, but the order which we purpose to pass is to his advantage and, in all probability, the same would be acceptable to him. We make it clear that if Respondent No.2, original complainant is not satisfied with this order, he will be free to apply for recall of the same, which request can be considered appropriately.
10. Accordingly, we partly allow this appeal in the aforementioned terms. Resultantly, the order of sentence passed by the Judicial First Class Magistrate-II, Ottappalam, dated 30-3-2010, stands modified to the extent that the appellant shall pay an additional compensation amount of Rs.1,00,000/- (Rupees one lakh only) to respondent No.2 original complainant (which is already deposited before the trial court, in lieu of simple imprisonment for three months' period. Ordered accordingly."
(p.289) ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 14 and, in a case titled as Priyanka Nagpal vs. State (NCT of Delhi) and another, reported in (2018)3 SCC 249, the relevant paragraph No.4 and 5 whereof .
stand extracted hereinafter:-
"4. After considering the submissions and going through the record of the case, we are of the opinion that it is not possible to interfere with the concurrent finding of fact regarding finding of guilt recorded against the appellant. Thus, no interference is warranted against the order of conviction. The only question that must receive our attention is about the sentence awarded to the appellant.
5. Having regard to the fact that the appellant has already deposited the compensation amount of Rs.6 lacs and also the fine amount of Rs.10,000/-, what remains is to undergo simple imprisonment for 2 months. We find that the Trial Court while awarding the sentence of 2 months has not considered the plea which has been urged before this Court as adverted to in the preceding paragraphs of this order. Neither the Revisional Court nor the High Court has considered the same. The appellant is the only earning member in the family and her source of income is also very nominal, barely enough to maintain herself and her family members and if she undergoes simple imprisonment for a period of two months, then she may end up losing her service, which is the only source of income for the family."
(p.251-252) ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 15 wherein, in P. Ramdas's case (supra), in lieu or in substitution, of, imposition, of, sentence of simple imprisonment upon the convict therein, the Hon'ble .
Apex Court, had imposed additional compensation amount, upon, the convict, AND, also ordered, qua its being defrayable to the complainant, upon, evidence surging forth, of the entire amount, borne, in the negotiable instrument, being liquidated, vis-a-vis, the respondent/complainant, (i) hereat also alike therewith , the entire compensation amount assessed, upon him, by the learned courts below, being also deposited, AND, when alike therewith, with, the entire amount borne, in the dishonoured negotiable instrument, standing realized by the complainant/respondent, from, the assets, of the petitioner/convict, (ii) importantly also when, the entire realization(s) hence occur, from, the assets of the convict/petitioner, and, also when he has a family to rear, it is deemed imperative, to, apply the mandate, of the aforesaid renditions, pronounced by the Hon'ble Apex Court, (iii) thereupon, in consonance therewith, without interfering, with, the findings of guilt pronounced upon the petitioner/accused, the sentence ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP 16 of imprisonment imposed upon him, is, substituted, by his, within two months from today, liquidating an additional compensation, comprised, in a sum of .
Rs.30,000/- (Rs. Thirty thousand only), vis-a-vis, the complainant/respondent, and, upon defrayment thereof, the sentence, of imprisonment imposed upon him, shall not be put into execution. The entire compensation amount, as deposited, before the learned trial Court, rbe released in favour of the complainant/respondent. Appeal stands disposed off in the aforesaid manner. All pending applications also stand disposed off. No order as to the costs.
(Sureshwar Thakur) 11 th June, 2018. Judge.
(jai) ::: Downloaded on - 14/06/2018 23:00:14 :::HCHP