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Delhi District Court

Sushil Kumar vs )The State Govt. Of Nct Delhi on 3 August, 2012

                  IN THE COURT OF SH. VIRENDER KUMAR GOYAL
                         ADDL SESSIONS JUDGE: FAST TRACK COURT 
                                                  ROHINI:DELHI
Criminal  Appeal  No. 34/12
Unique case ID No. 02404R0231372010



Sushil Kumar 
S/o Ram Kumar Sharma,
R/o E­2/17, Rama Vihar,
Post office Karala, Delhi.

                                                                             ...Appellant

                              Versus
1)The State Govt. of NCT Delhi
2) Rishi Kapoor
S/o Anup Singh,
R/o Village Mohammad Pur Majri,
Delhi­110081

                                                                      .....Respondents

               Date of institution of the case: 04.05.12
               Arguments heard on: 31/07/2012
               Date of reservation of order: 31/07/2012
               Date of Decision: 03/08/2012

               JUDGMENT

This is a criminal appeal u/s 374 of Cr.PC filed against the impugned judgment and order on sentence dated 16/08/2010 and 18/08/2010 passed by Ld Trial Court.

In brief, in a case filed U/s. 138 of Negotiable Instruments Act, CA No. 34/12 1/4 appellant was convicted and was awarded two years simple imprisonment alongwith compensation of Rs. 1,40,000/­ payable to the complainant. In default of payment of fine, he shall further undergo simple imprisonment for a period of 180 days.

Both impugned judgment and order on sentence have been challenged on various grounds. It is contended that the cheque in question was not issued in discharge of legal enforceable debt as the appellant had already paid the loan amount in question to the complainant. It is further contended that the cheque in question was issued as security and was issued blank at the time of handing over the same to the complainant. It is further contended that the complainant presented the cheque for encashment without confirming from the appellant as to whether any funds were available in the account or not. It is further contended that complainant has failed to disclose as to in whose presence the amount in question was given to the appellant. It is further contended that complainant did not obtain any promissory note or any other relevant document from the appellant, but on 24/11/2004, complainant forcibly got signed some blank pro­notes from the appellant in support of the cheque in question. It is further contended that appellant has examined defence evidence to rebut the presumption raised in favour of the complainant. It is further contended that learned Trial Court failed to appreciate the law and facts involved in this case. It is further contended that learned Trial court failed to consider all aspects of the case, hence, wrongly convicted the appellant. So, the judgment is not sustainable in the eyes of law.

I have heard Ld Counsel for the appellant and Ld Counsel for respondent and have also gone through the TCR.

CA No. 34/12 2/4

During the course of arguments, matter has been settled between the parties with the intervention of the Court for a sum of Rs. 2,00,000/­, out of which, Rs. 1,50,000/­ has been paid by the appellant to the respondent on 31/07/2002 and Rs. 50,000/­ has been paid by the appellant to the respondent today.

Ld counsel for both the parties have contended that the matter can be compounded even at the stage of appeal and in support of same they have relied upon the Damodar S. Prabhu Vs Sayed Babala H. of Supreme Court of India also reported as AIR 2010 SC 1907.

I have considered the submissions of Ld counsel for parties and have gone through the judgment relied upon. According to section 147, offences punishable under Negotiable Instrument Act is compoundable.

It has also been held in K.M.Ibrahim V. K.P. Mohammed and Anr.,2009 (14) SCALE 262 that " It is true that the application under section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution."

According to it, offence u/s 138 of Negotiable Instrument Act can be compounded at the appellate stage also.

Considering the above facts and circumstances, as the matter has been compromised by both the parties, I allow the compounding of the offence u/s 138 of N.I. Act. Sentence as imposed by Ld Trial Court vide order CA No. 34/12 3/4 dated 18/08/2010 is set aside and compensation amount is modified to Rs. 2 lacs, as settled.

It has also been held in Damodar S. Prabhu Vs Sayed Babala H. of Supreme Court of India that if the matter is compromised in the court of Appeal before the court of Sessions Court than the same be allowed on the condition that the accused will pay 15 percent of the cheque amount by way of cost. It has also been held that scale of cost 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.

Considering the above facts and circumstances, as appellant remained unable to pay the amount for quite a long time, I am of the opinion that the 15% cost of the cheque will be on higher side. Accordingly the cost at the rate of 1% of the cheque is imposed on appellant. Appellant is directed to deposit 1% of total amount of cheque of Rs. 70,000/­ i.e. Rs.700/­ in the court as Cost.

TCR be sent back with copy of order to the concerned court of learned Metropolitan Magistrate.

Appeal file be consigned to record room.

Announced in Open Court on dated 3rd of August, 2012 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi CA No. 34/12 4/4 CA No. 34/12 5/4