Himachal Pradesh High Court
Decided On: 08.01.2025 vs Central Bank Of India on 8 January, 2025
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 Neutral Citation No. ( 2025:HHC:1720 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 03 of 2025
Decided on: 08.01.2025
________________________________________________
Veer Bhader ....Petitioner
Versus
Central Bank of India
...Respondent
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Bhag Chand Sharma,
Advocate.
For the respondent: Kr. Virender Singh, Advocate,
vice Mr. Raman Prasher,
Advocate.
________________________________________________
Sushil Kukreja, Judge (oral)
The instant petition has been filed by the petitioner-accused under Section 438 read with Section 442 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), against judgment dated 04.03.2024, passed by learned Additional Sessions Judge, Rohru, in Criminal Appeal No. 118-R/10 of 2023, whereby the judgment of conviction, dated 23.08.2023, and order of sentence, dated 24.08.2023, passed by learned Additional Chief Judicial Magistrate Court No. 1, Rohru, District Shimla, H.P., in Criminal Case No. 81-3 of 2020, was affirmed. 1 Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2025:HHC:1720 )
2. The brief facts, giving rise to the present petition, can succinctly be summarized as under:
2(a). The Complainant-Bank, through its Manager Shri Fakir Chand Rana, filed a complaint against the petitioner- accused, wherein it was alleged that on 20.03.2012 the petitioner-accused took loan of Rs.4,00,000/- from the complainant-Bank for purchasing a vehicle. The petitioner- accused purchased the vehicle, but thereafter he did not care about repayment of the loan as well as interest amount, as per the scheduled and a sum of Rs.5,23,027/- was accumulated till 30.05.2020. It was further averred that the petitioner-accused, in order to liquidate his financial liability towards the complainant-Bank, issued a cheque bearing No. 050634, dated 30.05.2020, amounting to Rs.5,23,027/-, drawn at Central Bank of India, branch at Khadrala. However, the aforesaid cheque, on being presented for encashment, was dishonoured with remakrs "insufficient funds". Thereafter, the complainant-Bank issued a legal notice to the petitioner-accused on 03.06.2020, but despite receiving the same, he failed to make the payment of the aforesaid cheque amount. Resultantly, the complainant filed
3 Neutral Citation No. ( 2025:HHC:1720 ) a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") before the learned Trial Court.
3. The learned Trial Court after conclusion of the trial convicted the accused under Section 138 read with Section 142 of the Act and sentenced him to undergo simple imprisonment for a period of one year and to pay compensation of Rs.6,25,000/- to the complainant.
4. Being dissatisfied, the accused/petitioner/convict preferred an appeal before the learned Lower Appellate Court, which was dismissed and judgment of conviction, dated 23.08.2023, and order of sentence, dated 24.08.2023, was upheld. Hence, accused/petitioner/convict-Veer Bahder preferred the instant petition under Section 438 read with Section 442 of BNSS with a prayer that his petition be allowed and the impugned judgments and order of sentence passed by the learned Courts below be set-aside and he be acquitted.
5. During the pendency of the instant petition, an application (Cr.MP No. 53078 of 2024) under Sections 528, 359(6) of BNSS read with Section 147 of the Act has been filed by the petitioner-accused, seeking permission of this Court to compound the offence by setting-aside the judgment 4 Neutral Citation No. ( 2025:HHC:1720 ) of conviction, dated 23.08.2023, and order of sentence, dated 24.08.2023, passed by learned Additional Chief Judicial Magistrate, Court No. 1, Rohru, District Shimla, H.P., in Criminal Case No. 81-3 of 2020, and affirmed vide judgment dated 04.03.2024, passed by learned Additional Sessions Judge Rohru, H.P., in Criminal Appeal No. 118- R/10 of 2023.
6. On 02.01.2025 the statement of Shri Pradeep Kumar, Chief Manager, Regional Office, Central Bank of India, Shimla, who was authorized by the Complainant-Bank to make a statement before this Court, was recorded, and today, the statement of the petitioner-accused, who is present before this Court, has also been recorded. Both the statements have been separately placed on the file.
7. In his statement, Shri Pradeep Kumar, Chief Manager, stated that on the complaint filed by the respondent-Bank under Section 138 of the Act before the learned Additional Chief Judicial Magistrate, Court No. 1, Rohru, District Shimla, H.P., the petitioner-accused was convicted, vide judgment of conviction dated 23.08.2023 and order of sentence dated 24.08.2023, which was further affirmed by learned Additional Sessions Judge, Rohru, H.P., 5 Neutral Citation No. ( 2025:HHC:1720 ) vide judgment dated 04.03.2024. He has further stated that during the pendency of the dispute between the parties, respondent-Bank has settled the matter with the petitioner- accused under One Time Settlement Scheme. Now, the respondent-Bank has no objection, in case judgment of conviction, dated 23.08.2023, and order of sentence, dated 24.08.2023, passed by learned Additional Chief Judicial Magistrate, Court No. 1, Rohru, District Shimla, H.P., which was further affirmed by learned Additional Sessions Judge, Rohru, District Shimla, H.P., vide judgment dated 04.03.2024, is quashed and set-aside and the petitioner- accused is acquitted of the offence punishable under Section 138 of the Act.
8. The petitioner-accused Veer Bhader stated that during the pendency of the dispute between the parties, he has settled the matter with the respondent-Bank under 'One Time Settlement Scheme' and the respondent-Bank has issued a certificate in this regard. Therefore, judgment of conviction, dated 23.08.2023, and order of sentence, dated 24.08.2023, passed by learned Additional Chief Judicial Magistrate, Court No. 1, Rohru, District Shimla, H.P., which was affirmed by learned Additional Sessions Judge, Rohru, 6 Neutral Citation No. ( 2025:HHC:1720 ) H.P., vide judgment dated 04.03.2024, may be quashed and set-aside and he may be acquitted of the offence punishable under Section 138 of the Act.
9. I have heard the learned counsel for the petitioner, learned vice counsel for the respondent and gone through the material available on record.
10. Having taken note of the fact that the petitioner- accused and the respondent (complainant-Bank) have settled the matter and the respondent-Bank 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 vs. 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:-
"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 7 Neutral Citation No. ( 2025:HHC:1720 ) contemplated by Section 320 of the Code of Criminal Procedure (hereinafter "CrPC") will not be applicable in the strict sense since the latter is meant for the specified offences under the Indian Penal Code, 1860.
11. So far as the CrPC is concerned, Section 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 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:-
8 Neutral Citation No. ( 2025:HHC:1720 ) "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 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 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 compromised the matter with the respondent-Bank, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon'ble Apex Court.
9 Neutral Citation No. ( 2025:HHC:1720 )
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 to be compounded.
14. Accordingly, the present matter is ordered to be compounded and the impugned judgment of conviction, dated 23.08.2023, and order of sentence, dated 24.08.2023, passed by learned Additional Chief Judicial Magistrate, Court No. 1, Rohru, District Shimla, H.P., in Criminal Case No. 81- 3 of 2020, which was affirmed in appeal by learned Additional Sessions Judge, Rohru, H.P., in Criminal Appeal No. 118-R/10 of 2023, are 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.5,23,027/-, however, the learned counsel for the petitioner 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 10 Neutral Citation No. ( 2025:HHC:1720 ) respect to the imposition of compounding fee, which read as under:-
"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 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 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.
11 Neutral Citation No. ( 2025:HHC:1720 ) Bona fide litigants should of course contest the proceedings to their logical end."
17. Therefore, taking into consideration the law laid down by the Hon'ble Apex Court (supra) and the financial condition of the petitioner, since the 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.10,000/- (rupees ten thousand), only with the H.P. State Legal Services Authority, Shimla, H.P., within six weeks from today.
18. The petition stands disposed of accordingly, so also the pending miscellaneous application(s), if any.
( Sushil Kukreja )
8th December, 2025 Judge
(virender)