Himachal Pradesh High Court
Vikas Jishtu vs Puran Chand Sharma And Another on 23 May, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.8 of 2019.
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Date of decision: 23rd May, 2019 Vikas Jishtu .......Petitioner/Accused.
Versus Puran Chand Sharma and another ......Respondents/Complainant.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 . No For the Petitioner: Mr. Parmod Singh Thakur, Advocate.
For the Respondents: Mr. Vinod Thakur and Mr.
Sudhir Bhatnagar, Additional
Advocate Generals with Ms.
Svaneel Jaswal, Deputy
Advocate General, for
respondent No.2.
Tarlok Singh Chauhan, Judge (Oral).
Learned counsel for the petitioner has placed before the Court an affidavit allegedly executed by respondent No.1, acknowledging receipt of entire balance compensation amount, which is made part of the records.
2. In this view of the matter, learned counsel for the petitioner prays that the case be compounded in view of the very recent judgment of the Hon'ble Supreme Court in Bhangu 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 25/05/2019 21:56:53 :::HCHP 2 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 subsequent judgment in N.P. Murugesan versus C. Krishnamurthy, Criminal Appeal No.818 of 2018, decided on 04.07.2018.
3. It would be noticed that in the judgments referred to above, on the payment of the outstanding amount, the Hon'ble
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r to Supreme Court had compounded the cases by setting aside the convictions.
Now, the moot question is whether in absence of the complainant, such a course can be adopted. This question is no longer res integra in view of the judgment rendered by the Hon'ble Supreme Court in M/s. Meters and Instruments Private Limited and another versus Kanchan Mehta, AIR 2017 SC 4594 wherein after taking into consideration the entire law on the subject, the Hon'ble Supreme Court specifically held that even though compounding requires consent of both parties, however, in absence of such consent, the Court, in interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused, as is evident from para-
18 of the judgment which reads thus:-
"18. From the above discussion following aspects emerge:::: Downloaded on - 25/05/2019 21:56:53 :::HCHP 3
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 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.
ii) 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.
iii) 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.
iv) 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 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 ::: Downloaded on - 25/05/2019 21:56:53 :::HCHP 4 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.
v) 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."
5. Thus, taking into consideration all the attending facts and circumstances as also the law laid down by the Hon'ble Supreme Court in Bhangu Trading Co., N.P. Murugesan and Kanchan Mehta cases (supra), I am of the view that for doing complete justice, the whole litigation should be given a quietus.
6. Accordingly, the revision petition is allowed and the judgments of conviction and sentence passed by the learned Additional Chief Judicial Magistrate, Rampur Bushehar, District Shimla, on 03/05.07.2017, in Case No.127-3 of 2016, and as upheld by the learned Additional Sessions Judge, Rampur ::: Downloaded on - 25/05/2019 21:56:53 :::HCHP 5 Bushehar, District Shimla, on 15.09.2018, in Criminal Appeal No. 37-R/10 of 2017, are ordered to be set aside. The petitioner is .
acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act. Pending application(s), if any, also stands disposed of.
7. The amount of Rs.36,000/- lying in deposit before the learned trial Court is ordered to be released in favour of
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r to respondent No.1 on his furnishing his bank account before the concerned Court.
However, it is made clear that since the Court is deciding the instant lis on the basis of the representation being made by the petitioner, it shall always be open to respondent No.1 to approach this Court for redressal of his grievance, if still aggrieved.
9. The Registry is directed to send a copy of this judgment to respondent No.1 on the address given in the memo of parties.
23rd May, 2019. (Tarlok Singh Chauhan) (krt) Judge ::: Downloaded on - 25/05/2019 21:56:53 :::HCHP