Himachal Pradesh High Court
Ramesh Kumar vs Vivek Kumar on 6 December, 2021
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 6th DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL REVISION NO.490 OF 2019
Between:-
RAMESH KUMAR
S/O SHRI SUKH RAM,
R/O VILLAGE KALWAL,
POST OFFICE LOHARLI,
TEHSIIL DHATWAL,
DISTRICT HAMIRPUR,
HIMACHAL PRADESH .....PETITIONER
(BY SH. TARUN K. SHARMA,
ADVOCATE)
AND
1 VIVEK KUMAR
S/O SHRI SHOAL LAL,
R/O VILLAGE & POST OFFICE
CHAKMOH, TEHSIL DHATWAL,
DISTRICT HAMIRPUR,
HIMACHAL PRADESH
(BY SH.DEVENDER K. SHARMA,
ADVOCATE)
2. STATEMENT OF HIMACHAL PRADESH
...RESPONDENTS
(BY SH. HEMANT VAID, ADDITIONAL
ADVOCATE GENERAL)
Whether approved for reporting?
This petition coming on for presence of parties this
day, the Court passed the following:
ORDER
Present Revision Petition has been filed assailing judgment dated 24.10.2019, passed by learned Additional ::: Downloaded on - 31/01/2022 23:23:40 :::CIS 2 Sessions Judge, Hamirpur (H.P.), Circuit Court Barsar, in Criminal Appeal No.05 of 2017, titled as Ramesh Kumar vs. Vivek Kumar, whereby judgment and order dated 23.03.2017/28.03.2017, passed by learned Judicial Magistrate, First Class, Barsar District .
Hamurpur (H.P.), in Pvt/Cr.Complaint No.169-I-2011 titled as Vivek Kumar vs. Ramesh Kumar, convicting and sentencing the petitioner-accused to undergo simple imprisonment for one month and to pay compensation of `2,50,000/- to the complainant, has been affirmed.
2. It has been jointly submitted by learned counsel for the parties that matter has been compromised. Statements of Shri Tarun K. Sharma, learned counsel for the petitioner and Shri Devender K. Sharma, learned counsel, for respondent No.1, have been recorded, separately, and placed on the file.
3. In his statement, Mr.Tarun K. Sharma, learned counsel has stated that he has been duly authorized to make statement on behalf of the petitioner and has instructions to say that matter has been amicably settled with respondent No.1 and entire amount of compensation has been paid to respondent No.1 and he, in turn, has agreed to withdraw the complaint for compounding the case. He has stated that petitioner has deposited a sum of `75,000/- in the trial Court and `35,000/- in the Registry of this Court and as per compromise, this amount has to be refunded to the petitioner. He has further stated that petitioner is a poor person and has paid the entire amount of compensation by borrowing the same from his nears and dears, ::: Downloaded on - 31/01/2022 23:23:40 :::CIS 3 therefore, he has prayed that petitioner may be exempted from paying the compounding fee. He has also stated that as per instructions imparted to him, compromise has been arrived at with free will, consent and without any external pressure, .
coercion or threat of any kind and further that his deposition is strictly in terms of instructions imparted to him by the petitioner.
4. In his statement, Mr.Devender K. Sharma, learned counsel, has stated that he is representing respondent No.1, and has been duly authorized to make statement on behalf of respondent No.1 and has endorsed the statement of Mr.Tarun K. Sharma, Advocate, to be true and correct and, therefore, he, on behalf of respondent No.1, has no objection for compounding the case after permitting the complainant to withdraw the complaint. He has stated that as per compromise, the amount deposited by the petitioner in the Court is to be refunded to petitioner. He has further stated that as per instructions imparted to him, compromise has been arrived at with free will, consent and without any external pressure, coercion or threat of any kind and further that his deposition is strictly in consonance with instructions imparted to him by the respondent.
5. Consequently, complainant-respondent No.1 Vivek Kumar is permitted to withdraw the complaint and matter is compounded and complaint arising out of dishonour of cheque under Section 138 of the Negotiable Instruments Act is permitted to be withdrawn and judgments of conviction and sentence passed by learned Courts below are quashed and set aside. ::: Downloaded on - 31/01/2022 23:23:40 :::CIS 4 Petitioner-accused is acquitted of the accusation framed against him.
6. Learned counsel for the petitioner submits that petitioner is facing poor financial condition and is not able to pay .
compounding fee @ 15% and, therefore, a prayer has been made by learned counsel for exempting or reducing the compounding fee, keeping in view ratio of law laid down by the Apex Court in Damodar S. Prabhu Vs. Sayed Babalal H. 2010 (5) SCC 663, as clarified in Madhya Pradesh State Legal Services Authority Vs. Prateek Jain and another 2014 (10) SCC 690.
7. Considering the facts and circumstances of the case, instead of 15% of the cheque amount, it shall be appropriate to levy `5000/- as compounding fee upon the petitioner-accused. Accordingly, he is directed to deposit a sum of `5000/-, as compounding fee, with the H.P. State Legal Services Authority, Shimla, within two weeks from today and place receipt thereof on record of this petition.
8. In case of default in depositing compounding fee/cost with the H.P. State Legal Service Authority, Shimla, within the aforesaid period, the judgments of conviction and sentence shall automatically revive.
9. Petition stands disposed of, in the aforesaid terms, so also pending application(s), if any. Copy of this order be also sent to H.P. State Legal Services Authority, Shimla.
10. The petitioner has deposited a sum of `75,000/- in the trial Court and `35,000/- in the Registry of this Court. ::: Downloaded on - 31/01/2022 23:23:40 :::CIS 5
11. Registry is directed to release the amount of `35,000/-, alongwith interest, if any, accrued thereon, in favour of the petitioner by remitting it in his bank account on supply of details of bank account by the petitioner through his counsel.
.
12. Trial Court is also directed to release `75,000/-, alongwith interest, if any, accrued thereon, in favour of the petitioner, without issuing notice to respondent Vivek Kumar, by remitting the same in his Bank Account, on production of downloaded copy of this order alongwith details of his bank account.
13. Petitioner is permitted to produce a copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.
(Vivek Singh Thakur), Judge.
December 6, 2021 (Purohit) ::: Downloaded on - 31/01/2022 23:23:40 :::CIS