Himachal Pradesh High Court
Naresh Kumar vs Shobha Ram on 12 October, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 495 of 2023
Decided on: 12.10.2023
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________________________________________________
Naresh Kumar ....Petitioner
Versus
Shobha Ram ...Respondent
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
of
For the petitioner: Mr. Lalit K. Sehgal, Advocate.
For the respondent: rt Mr. Mohar Singh, Advocate.
________________________________________________
Sushil Kukreja, Judge (oral)
The instant petition has been filed by the petitioner-accused under Section 397 read with Section 401 of the Code of Criminal Procedure (for short 'Cr.P.C.') against judgment dated 24.05.2023, passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, District Shimla, H.P., whereby the judgment of conviction and order of sentence dated 14.06.2022, passed by the learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P., in Criminal Complaint No. 233-3-2016, was affirmed.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 13/10/2023 20:35:11 :::CIS 22. The brief facts, giving rise to the present petition, can succinctly be summarized as under:
3. The complainant-Shobha Ram, being an .
orchardist, during the year 2016, send packed apple boxes to one Vikash Jisthu at Kandyali, where he was running a fruit selling agency and he sold the same and issued a sale invoice No. 3491, dated 04.08.2016, amounting to of Rs.43,630/-. In order to liquidate the above liability, the petitioner-accused issued a cheque, bearing No. 751899, rt dated 17.08.2016, amounting to Rs.43,630/-, drawn at Punjab National Bank, Branch Mul Matiana, Shimla, H.P., which on being presented for encashment, was dishonored with remarks "funds insufficient". Thereafter, the complainant served legal notice, dated 07.10.2016, upon the accused, but despite service of notice the accused had not made any payment to the complainant. Resultantly, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter, for the sake of brevity, referred to as the "NI Act") before the learned Trial Court.
4. The learned Trial Court after conclusion of the trial convicted the accused under Section 138 of the NI Act ::: Downloaded on - 13/10/2023 20:35:11 :::CIS 3 and sentenced him to undergo simple imprisonment for a period of one year and to pay a sum of Rs.60,000/- as compensation to the complainant.
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5. Being dissatisfied, the accused/petitioner/convict preferred an appeal before the learned Lower Appellate Court, which was dismissed and the judgment of the learned Trial Court was upheld. Hence, accused/petitioner/convict-
of Naresh Kumar preferred the instant petition under Section 397 read with Section 401 Cr.P.C. with a prayer that his rt petition may be allowed and the impugned judgments and order of sentence passed by the learned Courts below may be set-aside and he be acquitted.
6. During the pendency of the instant petition, an application (Cr.MP No. 3895 of 2023) under Section 147 of the NI Act has been filed by the petitioner-accused seeking permission of this Court to compound the offence by setting-
aside the judgment of conviction and order of sentence dated 14.06.2022, passed by the learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P., in Criminal Complaint No. 233-3-2016, and affirmed vide judgment dated 24.05.2023, passed by learned Sessions ::: Downloaded on - 13/10/2023 20:35:11 :::CIS 4 Judge, Kinnaur Sessions Division at Rampur Bushahr, District Shimla, H.P., in CIS Case No. 27 of 2022.
7. Today, statement of Shri Mohar Singh, learned .
counsel representing the complainant, has been recorded and separately placed on the file.
8. In his statement, Shri Mohar Singh, Advocate, stated that on the basis of the complaint of the respondent-
of complainant, a complaint under Section 138 of the NI Act was registered against the petitioner-accused before the rt Court of learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P., and vide judgment of conviction and order of sentence dated 14.06.2022, the petitioner-accused was convicted under Section 138 of the NI Act and sentenced to undergo simple imprisonment for a period of one year and to pay a compensation in the sum of Rs.60,000/-, which judgment/order was affirmed by the learned Sessions judge, Kinnaur Sessions Division at Rampur Bushahr, District Shimla, H.P., vide judgment dated 24.05.2023. He has further stated that since the entire compensation amount, as ordered by the learned trial Court has been paid by the petitioner-accused, he has been authorized by the complainant to compound the matter and ::: Downloaded on - 13/10/2023 20:35:11 :::CIS 5 the complainant-respondent has no objection in case the judgment of conviction and order of sentence dated 14.06.2022, passed by the learned Trial Court and affirmed .
by the learned Sessions Judge Kinnaur Sessions Division at Rampur Bushahr, District Shimla, H.P., vide judgment dated 24.05.2023, is quashed and set-aside and the petitioner-
accused is acquitted of the offence under Section 138 of the of NI Act.
9. I have heard the learned counsel for the parties rt and have also gone through the material available on record.
10. Having taken note of the fact that the petitioner-
accused has paid the entire amount of compensation, as ordered by the learned Trial Court, to the complainant-
respondent and the complainant has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accused-petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon'ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H., (2010) 5 SCC 663, wherein the Hon'ble Apex Court has held as under:-
"10. At present, we are of course concerned with Section 147 of the Act, which reads as follows:-::: Downloaded on - 13/10/2023 20:35:11 :::CIS 6
"147. Offences to be compoundable- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be .
compoundable."
At this point, it would be apt to clarify that in view of the non-obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure (hereinafter "CrPC") will not be applicable in the strict sense since the latter is of meant for the specified offences under the Indian Penal Code, 1860.
11. So far as the CrPC is concerned, Section rt 320 deals with offences which are compoundable, either by the parties without the leave of the court or by the parties but only with the leave of the Court. Sub-section (1) of Section 320 enumerates the offences which 9 are compoundable without the leave of the Court, while subsection (2) of the said section specifies the offences which are compoundable with the leave of the Court.
12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 of the CrPC which states that 'No offence shall be compounded except as provided by this Section'. A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Indian Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause."
11. In K. Subramanian Vs. R. Rajathi; (2010) 15 Supreme Court Cases 352, it has been held by the ::: Downloaded on - 13/10/2023 20:35:11 :::CIS 7 Hon'ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after .
recording of the judgment of conviction. The relevant portion of the judgment is reproduced as under:-
"6. Thereafter a compromise was entered into and the petitioner claims that he has paid Rs. 4,52,289 to the respondent. In support of this claim, the petitioner of has produced an affidavit sworn by him on 1.12.2008. The petitioner has also produced an affidavit sworn by P. Kaliappan, Power of attorney holder of R. Rajathi on 1.12.2008 mentioning that he has received a sum of Rs. 4,52,289 due under the dishonoured cheques in full rt discharge of the value of cheques and he is not willing to prosecute the petitioner.
7. The learned counsel for the petitioner states at the Bar that the petitioner was arrested on 30.7.2008 and has undergone the sentence imposed on him by the trial Court and confirmed by the Sessions Court, the High Court as well as by this Court. The two affidavits sought to be produced by the petitioner as additional documents would indicate that indeed a compromise has taken place between the petitioner and the respondent and the respondent has accepted the compromise offered by the petitioner pursuant to which he has received a sum of Rs.4,52,289. In the affidavit filed by the respondent a prayer is made to permit the petitioner to compound the offence and close the proceedings.
8. Having regard to the salutary provisions of Section 147 of the Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, this Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code."
12. Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has paid ::: Downloaded on - 13/10/2023 20:35:11 :::CIS 8 the entire compensation amount, as ordered by the learned trial Court, to the complainant, prayer for compounding the offence can be accepted in terms of the aforesaid judgments .
passed by the Hon'ble Apex Court.
13. Therefore, in view of the detailed discussion made hereinabove as well as law laid down by the Hon'ble Apex Court, the application is allowed and matter is ordered of to be compounded.
14. Accordingly, the present matter is ordered to be rt compounded and the impugned judgment of conviction and order of sentence dated 14.06.2022, passed by the learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P., in Criminal Complaint No. 233-3-2016, and affirmed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, District Shimla, H.P., vide judgment dated 24.05.2023, in CIS Case No. 27 of 2022, is quashed and set-aside and the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act. Bail bonds, if any, stand discharged.
15. Undisputedly, the total amount of the cheques is Rs.43,630/-, however, the learned counsel for the petitioner ::: Downloaded on - 13/10/2023 20:35:11 :::CIS 9 submitted that the petitioner is a poor person and the imposition of compounding fee may be reduced.
16. In case K. Subramanian vs. R. Rajathi (supra), .
the Hon'ble Apex Court had issued the guidelines with respect to the imposition of compounding fee, which read as under:-
"THE GUIDELINES of
(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 rt 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 Curt 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.
... ... ... ... ... ... ...
25. 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 ::: Downloaded on - 13/10/2023 20:35:11 :::CIS 10 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. Bona fide litigants should of course contest the proceedings to their logical end."
17. Therefore, taking into consideration the law laid of down by the Hon'ble Apex Court (supra) and the financial condition of the petitioner, as he is a poor person, since the rt competent Courts can reduce the compounding fee with regard to the specific facts and circumstances of the case, the petitioner is directed to deposit token compounding fee of Rs.3,000/- (rupees three thousand), only with the State Legal Services Authority, Shimla, H.P., within four weeks from today.
18. The petition stands disposed of accordingly, so also the pending miscellaneous application(s), if any.
( Sushil Kukreja ) th 12 October, 2023 Judge (virender) ::: Downloaded on - 13/10/2023 20:35:11 :::CIS