Himachal Pradesh High Court
Shri Jalam Singh vs Shri Sandeep Chauhan on 12 July, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Revision No.106 of 2019
Reserved on : 05.07.2019
Date of decision : 12th July, 2019
Shri Jalam Singh ... Petitioner.
Versus
Shri Sandeep Chauhan ...Respondent
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No For the Petitioner : Mr. Kishore Pundir and Mr. Alvin Messey, Advocates.
For the Respondent : Mr. P.S. Goverdhan, Advocate.
Anoop Chitkara, Judge The present criminal revision petition is filed under Section 397 read with section 401 of the Code of Criminal Procedure. The petitioner is aggrieved by the judgment dated 21.2.2019, passed in Criminal Appeal No.18-S/10 of 2018, titled as Shri Jalam Singh versus Shri Sandeep Chauhan, pronounced by learned Sessions Judge, Solan, District Solan, Himachal Pradesh, in an appeal under Section 374 of the 1 Whether reporters of Local Papers may be allowed to see the judgment?
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Code of Criminal Procedure. Prior to this, learned Judicial .
Magistrate 1st Class, Court No.1, Solan, District Solan, H.P., in Criminal Case No.450-3 of 2014/13, titled as Sandeep Chauhan versus Jalam Singh, had convicted the petitioner for commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The petitioner-convict was sentenced to undergo simple imprisonment for one year & six months and was further directed to pay fine double of the cheque amount i.e. Rs.5,30,000/-to the complainant. In default thereof, he was directed to undergo further simple imprisonment for six months.
2. A complaint under Section 138 of the Act was filed by the complainant, leveling the following allegations:-
(a) The accused engaged one J.C.B machine belonging to the complainant on contract basis/rental basis for carrying out development work at various sites as he stated himself to be involved in the business of construction.
(b) The accused made undue delay in making payments of arrears of rent amount and finally ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...3...
upon repeated requests, he in order to discharge his liability, had issued one cheque bearing .
No.250855 dated 21.7.22013 amounting to Rs.2,65,000/-drawn on account No.307/142036 maintained with Syndicate Bank, Branch Rajgarh Road Solan in favour of the complainant.
(d) This cheque bounced due to the insufficient funds in his account. The original cheque and memo dated 17.10.2013 were attached with the complaint.
(e) That the complainant got issued a legal notice dated 11.11.2013 under registered AD cover, however, the accused did not pay or made any arrangements to clear the cheque amount.
(f) Resultantly, a complaint was filed under Section 138 of the Act.
(g) Learned trial Court (Judicial Magistrate 1st Class, Court No.1, Solan, District Solan), vide order dated 14.1.2015 put notice of accusation to the accused.
(h) After completion of the trial, accused was convicted and sentenced as aforesaid. (I) The appeal against the impugned judgment was also dismissed. Resultantly, petitioner filed the present criminal revision.
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3. When this revision petition was listed before a Co-
.
ordinate Bench of this Court, on 30.5.2019, learned counsel for the petitioner, after arguing for some time, prayed for adjournment in order to enable his client to negotiate with the respondent and the matter was adjourned for 28.6.2019.
4. On 28.6.2019, the matter was adjourned at the request of learned counsel for the respondent. Today on 5.7.2019, when this matter was taken up, then Mr. Kishore Pundir, learned counsel for the accused made a statement, under instructions, that the matter stands compromised and as per the compromise, an amount of Rs.1,06,000/- (One lac six thousand only) stood deposited by the petitioner/accused in the trial Court which are requested to be released in favour of the complainant. The complainant-respondent was also present. His statement to this effect was also recorded separately, in which he stated that no amount, after receipt of the aforesaid amount from the trial Court, remains unpaid to him. He is willing in closure of the present case.
5. It has been argued by Mr. Kishore Pundir, learned counsel for the petitioner that in view of the fact that entire ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...5...
compensation amount has been paid/deposited, therefore, .
this matter be compounded in terms of the Act and F.I.R. and other proceedings be quashed. Learned counsel appearing for respondent did not dispute or raise any objection to this contention. Therefore, in my considered view, the offence is ordered to be compounded and all proceedings are quashed on the following grounds:-
6. The jurisprudence behind the N.I. Act is that the business transactions are honoured. The legislative intention is not to send the people to suffer incarceration because their cheque was bounced. These proceedings are simply to execute the recovery of cheque amount by showing teeth of penalty loss.
7. This Court has inherent powers under Section 482 of the Code of Criminal Procedure which are further supported by Section 147 of the N.I. Act to interfere in this kind of matter where parties have paid the entire money and where the complainant does not object to clear all the proceedings.
8. In view of the entirety of the facts of the case, as well as judicial precedents, a few of which have been ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...6...
mentioned hereinabove, I am of the considered opinion that .
continuation of these proceedings will not suffice any fruitful purpose whatsoever. Therefore, I am of the considered opinion that in view of the compromise, this is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure read with 147 of Negotiable Instruments Act, is invoked to compound the offence and consequently to quash the above mentioned complaint and consequent proceedings.
9. In Shakuntala Sawhney v. Kaushalya Sawhney, (1979) 3 SCR 639, at p 642, Hon'ble Supreme Court observed as follows:
"The finest hour of Justice arise propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion."
10. Consequently, in view of compounding of offences, the judgment dated 21.2.2019, passed in Criminal Appeal No.18-S/10 of 2018, titled as Shri Jalam Singh vs. Shri Sandeep Chauhan, pronounced by learned Sessions Judge, ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...7...
Hamirpur, District Hamirpur, Himachal Pradesh, whereby he .
upheld the judgment passed by learned Judicial Magistrate 1st Class, Court No.1, Solan, District Solan, H.P., in Criminal Case No.450-3 of 2014/13, titled as Sandeep Chauhan vs. Jalam Singh, convicting and sentencing the petitioner to to undergo simple imprisonment for one year and six months and to pay fine to the tune of Rs.5,30,000/- to the complainant and in default thereof to undergo further simple imprisonment for a period of six months, are set aside and quashed. Consequently, the petitioner is acquitted of the offence under Section 138 of the Act. The bail bonds are accordingly discharged.
11. This compounding is subject to the convict/accused depositing 15% of the cheque amount, in terms of the judgment passed by a Larger Bench of Hon'ble Supreme Court in Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, whereby following law for compounding of offences punishable under Negotiable Instruments Act, 1881 was laid down:
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"....21...THE GUIDELINES
(i) In the circumstances, it is proposed as follows :
.
(a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.
(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.
(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.
(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.::: Downloaded on - 29/09/2019 00:43:32 :::HCHP
...9...
Let it also be clarified that any costs imposed in accordance with these guidelines should be .
deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate's Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority."
12. The amount of cheque in question was Rs.2,65,000/-, 15% of which, comes out to be Rs.39,750/-.
The petitioner shall deposit the amount of Rs.39,750/-, on or before 31.12.2019 in the Office of Himachal Pradesh State Legal Services Authority, Shimla, failing which, this order of compounding shall automatically stand cancelled and the revision petition shall be posted for hearing on merits.
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13. The learned trial Court shall release all the amount .
deposited in this case, if any, alongwith interest in favour of the respondent, in his bank account in the manner, as desired by him immediately on production of certified copy of this judgment, Accordingly petition stands disposed of. All pending application(s), if any, also stand disposed of.
r (Anoop Chitkara),
Judge.
12th July, 2019(KS)
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