Himachal Pradesh High Court
Tara Chand vs Rakesh Kashyap on 12 July, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Revision No. 218 of 2019
Reserved on : 19.6.2019
Date of decision : 12.07.2019
Tara Chand ... Petitioner.
Versus
Rakesh Kashyap
...Respondent
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting?1 Yes.
For the Petitioner : Mr. H.C.Sharma, Advocate. For the Respondent : Mr. Vinod Sharma, Advocate.
Anoop Chitkara, Judge The present criminal revision petition is filed under Section 397 read with section 401 of the Code of Criminal Procedure. Feeling aggrieved by the judgement of conviction passed by the Additional Chief Judicial Magistrate, Theog, Distt. Shimla, in NI Act Complaint No.124-3 of 2012, the convict challenged the same before the learned Sessions 1 Whether reporters of Local Papers may be allowed to see the judgment?
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Judge, Shimla. It was registered as Cr. Appeal No. 33-T/10 of .
2014, titled as Tara Chand vs. Rakesh Kashyap. Vide order dated 21.11.2015, the said appeal was dismissed in default.
Feeling aggrieved, the convict filed a Criminal Revision, alongwith application under Section 5 of the Limitation Act, for extension of time in filing the revision. This petition was listed on 19th June, 2019, when the counsel for the petitioner and respondent were present. After issuing notice to the respondent, notice on his behalf was accepted by Shri Vinod Sharma, Advocate. The respondent intended not to file reply to application for extension of time and in fact he did not oppose, if the same was allowed. Thereafter, vide order dated 19th June, 2019, the application for condonation of delay had been allowed.
2. At this stage, counsel for the parties stated that the entire matter has been compromised. Both the complainant and accused were present in Court. On this the statements of the complainant as well as accused were recorded, in which they said that they had compromised the matter, without any coercion, duress and pressure.
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3. The gist of the complaint filed by the .
complainant/respondent, under Section 138 of the Negotiable Instrument Act is as follows:-
(a) The accused approached the complainant and requested to give him a sum of Rs.1.50 lacs and assured to return that amount. In lieu thereof, the accused issued one cheque for a sum of Rs.1.50 lacs, dtd. 19.6.2018, in favour of the complainant. The complainant presented this cheque for encashment in PNB on 19.6.2018 itself but it was returned by the bank as dishonoured, on account of insufficient fund in the account of the accused.
(b) The complainant got issued a legal notice Ext.CW-1/C to the accused, calling upon him to make the payment of cheque amount, within fifteen days of the receipt of notice. The legal notice was received back undelivered as the accused was not found in the house.
(c) Resultantly, a complaint was filed under Section 138 of the Act.
(d) Learned trial Court put notice of accusation to the accused.::: Downloaded on - 29/09/2019 00:43:21 :::HCHP
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(e) After completion of the trial, accused was convicted and sentenced to undergo simple .
imprisonment for four months and was also directed to pay compensation to the tune of Rs.1.60 lacks.
(f) On 21.11.2015, the appeal against the impugned judgment was dismissed in default.
Resultantly, petitioner filed the present criminal revision.r
4. It has been argued by the learned counsel for the appellant/accused that in view of the fact that the parties have compromised the matter amicably, and entire compensation amount has been paid by the accused, therefore, this matter be compounded in terms of the Act, and the consequential proceedings arising thereof be quashed. Learned counsel appearing for respondent consented for such closure and therefore, the offence is ordered to be compounded on the following grounds:-
(i) The jurisprudence behind the N.I. Act, is that the business transactions are honoured. The legislative intention is not to send the people to ::: Downloaded on - 29/09/2019 00:43:21 :::HCHP ...5...
suffer incarceration because their cheque was bounced. These proceedings are simply to execute .
the recovery of cheque amount by showing teeth of penal laws.
(ii) 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 to close all the proceedings.
5. In view of the entirety of the facts of the case, as well as judicial precedents, a few of which have been mentioned hereinafter, 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 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 quash the criminal proceedings.
6. In Shakuntala Sawhney v. Kaushalya Sawhney, (1979) 3 SCR 639, at p 642, Hon'ble Supreme Court observed as follows:
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"The finest hour of Justice arise propitiously when parties, despite falling apart, bury the .
hatchet and weave a sense of fellowship or reunion."
7. Consequently, in view of the compounding of offences, the judgement of conviction passed by the learned trial Court, and affirmed by the learned Additional Sessions Judge, is set aside and quashed.
8. However, there is another aspect of the matter, which needs to be looked into. This being an illegality, as such, that should be addressed before the proceedings are closed on the question of compounding. The learned Additional Sessions Judge, which was Court of First Appeal, and was supposed to hear the matter on merits, went on to dismiss the appeal in default. It could have put up the matter for some other day or still, if the counsel was not appearing to argue the criminal appeal then counsel from the Legal Aid Services should have been provided or at least notice should have been issued to the appellant. Without resorting to any ::: Downloaded on - 29/09/2019 00:43:21 :::HCHP ...7...
of the provisions, learned First Appellate Court, thought it .
proper to dismiss the criminal appeal in default.
9. In K.S. Panduranga v. State of Karnataka, 2013 (3) SCC 721, the Supreme Court laid down the following guidelines, in situations when the counsel is absent in Criminal matters:
can be culled out are r to
22. From the aforesaid decision, the principles that
(i) that the High Court cannot dismiss an appeal for non- prosecution simpliciter without examining the merits;
(ii) that the court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent;
(iii) that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;
(iv) that it can dispose of the appeal after perusing the record and judgment of the trial court;
(v) that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and ::: Downloaded on - 29/09/2019 00:43:21 :::HCHP ...8...
(vi) that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation.
.
10. In Surya Baksh Singh v. State of Uttar Pradesh, 2014 (14) SCC 222, the Supreme Court reiterated the law laid down in K.S Panduranga v. State of Karnataka.
"24. It seems to us that it is necessary for the Appellate Court which is confronted with the absence of the convict as well as his counsel, to immediately proceed against the persons who stood surety at the time when the convict was granted bail, as this may lead to his discovery and production in Court. If even this exercise fails to locate and bring forth the convict, the Appellate Court is empowered to dismiss the appeal. We fully and respectfully concur with the recent elucidation of the law, profound yet perspicuous, in K.S. Panduranga v. State of Karnataka, 2013 (3) SCC 721....."
11. Now, in view of the law discussed above, it was absolutely illegal for the learned Additional Sessions Judge, who was sitting as the Court of First Appeal, to have dismissed the criminal appeal in default. Moreover, neither the complainant nor his counsel were aware of such order, ::: Downloaded on - 29/09/2019 00:43:21 :::HCHP ...9...
hence it cannot be ruled out that the appellant/convict was .
forced to enter into a compromise because the sword of Damocles was hanging over his head, as an imminent and ever present peril, as he was having not only the dismissal of his first appeal but also the expired period of limitation in filing the Criminal Revision Petition.
12. From the perusal of the order dated 21.11.2015, it is clear that the learned Additional Sessions Judge did not adhere to the guidelines given by Hon'ble Supreme Court.
Therefore, on this ground alone, the order dated 21.11.2015 is quashed and set-aside. Now, the proper course would be to remand the matter to Sessions Judge for fresh hearing on merits. However, as already mentioned here-in-before, the parties have entered into a compromise. In an holistic view of the matter, it would be appropriate in the facts and circumstances of the case, to quash and close the proceedings. Ordered accordingly.
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13. A three judges bench of Supreme Court, in Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, laid down the .
following law for compounding of offences punishable under Negotiable Instruments Act, 1881:
"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 ::: Downloaded on - 29/09/2019 00:43:21 :::HCHP ...11...
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.
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.
17. We are also conscious of the view that the judicial endorsement of the above quoted guidelines could be seen as an act of judicial law-making and therefore an intrusion into the legislative domain. It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. We have already explained that the scheme contemplated under Section 320 of the Criminal Procedure Code ::: Downloaded on - 29/09/2019 00:43:21 :::HCHP ...12...
cannot be followed in the strict sense. In view of the legislative vacuum, we see no hurdle to the .
endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act. The graded scheme for imposing costs is a means to encourage compounding at an early stage of litigation. In the status quo, valuable time of the Court is spent on the trial of these cases and the parties are not liable to pay any Court fee since the proceedings are governed by the Code of Criminal Procedure, even though the impact of the offence is largely confined to the private parties. Even though the imposition of costs by the competent court is a matter of discretion, the scale of costs 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. Bonafide litigants should of course contest the proceedings to their logical end. Even in the past, this Court has used its power to do complete justice under Article 142 of the Constitution to frame guidelines in relation to subject-matter where there was a legislative vacuum.
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14. In Madhya Pradesh State Legal Services Authority v. Prateek Jain, (2014) 10 SCC 690, the Supreme Court holds as .
under:
22. What follows from the above is that normally costs as specified in the guidelines laid down in the said judgment has to be imposed on the accused persons while permitting compounding. There can be departure therefrom in a particular case, for good reasons to be recorded in writing by the concerned Court. It is for this reason that the Court mentioned three objectives which were sought to be achieved by framing those guidelines, as taken note of above.
It is thus manifestly the framing of "Guidelines" in this judgment was also to achieve a particular public purpose. Here comes the issue for consideration as to whether these guidelines are to be given a go by when a case is decided/settled in the Lok Adalat? Our answer is that it may not be necessarily so and a proper balance can be struck taking care of both the situations.
23. Having regard thereto, we are of the opinion that even when a case is decided in Lok Adalat, the requirement of following the guidelines contained in Damodar S. Prabhu (supra) should normally not be dispensed with. However, if there is a special/specific reason to deviate therefrom, the Court is not ::: Downloaded on - 29/09/2019 00:43:21 :::HCHP ...14...
remediless as Damodar S. Prabhu (supra) itself has given discretion to the concerned Court to reduce the .
costs with regard to specific facts and circumstances of the case, while recording reasons in writing about such variance. Therefore, in those matters where the case has to be decided/settled in the Lok Adalat, if the Court finds that it is a result of positive attitude of the parties, in such appropriate cases, the Court can always reduce the costs by imposing minimal costs or even waive the same. For that, it would be for the parties, particularly the accused person, to make out a plausible case for the waiver/reduction of costs and to convince the concerned Court about the same. This course of action, according to us, would strike a balance between the two competing but equally important interests, namely, achieving the objectives delineated in Damodar S. Prabhu (supra) on the one hand and the public interest which is sought to be achieved by encouraging settlements/resolution of case through Lok Adalats.
15. Therefore, in view of the law laid down by Hon'ble Supreme Court in Damodar S. Prabhu vs. Sayed Babalal H., (2010) 5 SCC 663 and further explained in Madhya Pradesh State Legal Services Authority vs. Prateek Jain and another (2014) 10 SCC 690, sufficient reasons exists to waive off the ::: Downloaded on - 29/09/2019 00:43:21 :::HCHP ...15...
compounding fee. Hence, compounding penalty quantified .
at 15% of the sum comprised in the dishonoured cheque is dispensed with and the same is waived off. The criminal revision stands closed and in nutshell the accused is acquitted of all the charged offences.
16. The bail bonds are accordingly discharged.
17. The learned trial Court shall release all the amount deposited in this case, if any, alongwith interest in favour of respondent, in the account of complainant 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, stand closed.
12th July, 2019. (Anoop Chitkara)
(TM) Judge.
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