Himachal Pradesh High Court
________________________________________________ vs Punjab National Bank on 20 September, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 383 of 2023
.
Decided on: 20.09.2023
________________________________________________
Meenakshi ....Petitioner.
Versus
Punjab National Bank ...Respondent.
Coram
of
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
For the petitioner: Ms. Seema K. Guleria,
rt Advocate.
For the respondent: Mr. Arvind Sharma, 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 20.07.2023, passed by learned Sessions Judge, Una, District Una, H.P., in CIS Registration No. 74 of 2023, whereby the judgment, dated 07.03.2023, passed by learned Chief Judicial Magistrate, Una, District Una, H.P., in Case No. 315-II-20, convicting the petitioner-accused, was affirmed.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 20/09/2023 20:37:40 :::CIS 22. The brief facts, giving rise to the present petition, can succinctly be summarized as under:
.
3. The accused-Meenakshi availed loan facility, amounting to Rs.1,00,000/- from the Punjab National Bank, Branch Pubowal, Tehsil Haroli, District Una, H.P. (hereinafter referred to as the complainant-Bank), but she failed to repay of the loan installments. The petitioner-accused, in order to liquidate her financial liability towards the complainant-Bank, rt issued cheque No. 910942, dated 19.02.2020, amounting to Rs.1,10,000/-, being the payment of outstanding loan amount, in favour of the complainant-Bank. However, the aforesaid cheque was dishonored for want of sufficient funds in the account of the petitioner-accused. Subsequently, on 27.02.2020 the complainant-Bank served a legal notice upon the petitioner-accused, demanding payment of the cheque amount within the stipulated time, but the petitioner-accused failed to make the payment within the stipulated period, therefore, the complainant-Bank 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.
::: Downloaded on - 20/09/2023 20:37:40 :::CIS 34. The learned Trial Court after conclusion of the trial convicted the accused under Section 138 of the NI Act .
and sentenced him to undergo simple imprisonment for a period of one month and to pay a sum of Rs.1,25,000/- as compensation to the complainant.
5. Being dissatisfied, the accused/petitioner/convict of preferred an appeal before the learned Lower Appellate Court, which was dismissed and the judgment of the learned rt Trial Court was upheld. Hence, accused/petitioner/convict-
Meenakshi preferred the instant petition under Section 397 read with Section 401 Cr.P.C. with a prayer that her petition may be allowed and the impugned judgments and order of sentence passed by the learned Courts below may be set-
aside and she be acquitted.
6. During the pendency of the instant petition, an application (Cr.MP No. 3056 of 2023) under Section 147 of the NI Act read with Section 482 of Cr.P.C. has been filed by the petitioner-accused seeking permission of this Court to compound the offence by setting-aside the judgment of conviction, dated 07.03.2023, and order of sentence, dated 14.03.2023, passed by the learned Chief Judicial Magistrate, ::: Downloaded on - 20/09/2023 20:37:40 :::CIS 4 Una, District Una, H.P., in Case No. 315-II-20 and affirmed vide judgment dated 20.07.2023, passed by learned .
Sessions Judge, Una, District Una, H.P., in CIS Registration No. 74 of 2023, as she had deposited the entire compensation amount of Rs.1,25,000/- with the complainant-
Bank and the complainant-Bank had also issued No Dues of Certificate on 25.07.2023. The application is supported with an affidavit of the petitioner-accused. The learned counsel rt for the respondent-Bank also stated at the bar that the matter has been settled between the parties under the OTS (One Time Settlement) Scheme and there is no balance outstanding against the said account, as per the 'No Due Certificate' issued by the Bank.
7. I have heard the learned Counsel for the petitioner-accused, learned vice counsel for the respondent-
complainant-Bank and examined the entire records.
8. The accused has annexed No Due Certificate, dated 25.07.2023, issued by the Branch Manager, Punjab National Bank, Pubowal, H.P.. As per this certificate, the accused had availed a Kalyani Loan from the bank, vide Loan Account No. 7974008900002985, and the said loan ::: Downloaded on - 20/09/2023 20:37:40 :::CIS 5 has been closed under OTS (One Time Settlement), as on 25.07.2023. Now there is no balance outstanding against .
the said account.
9. Having taken note of the fact that the petitioner-
accused has settled the matter with the complainant-Bank and the loan account has been closed under the OTS of scheme and the complainant-Bank has also issued 'No Due Certificate' to the petitioner-accused, which is placed on the rt record, coupled with the fact that the petitioner-accused has prayed that the matter may be ordered to be compounded, as the parties have compromised the matter, 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:-
"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."::: Downloaded on - 20/09/2023 20:37:40 :::CIS 6
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 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, of 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 rt 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."
10. 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 ::: Downloaded on - 20/09/2023 20:37:40 :::CIS 7 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 has produced an affidavit sworn by him on 1.12.2008.
of 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 rt 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."
11. Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has settled the matter with the complainant-Bank under the One ::: Downloaded on - 20/09/2023 20:37:40 :::CIS 8 Time Settlement scheme, prayer for compounding the offence can be accepted in terms of the aforesaid judgments .
passed by the Hon'ble Apex Court.
12. Therefore, in view of the detailed discussion made hereinabove as well as law laid down by the Hon'ble Apex Court, the parties are permitted to get the matter of compounded in light of the fact that the petitioner-accused had deposited the entire amount of compensation in the rt complainant-Bank and settled the matter under One Time Settlement scheme.
13. Accordingly, the present matter is ordered to be compounded and the impugned judgment of conviction, dated 07.03.2023, and order of sentence, dated 14.03.2023, passed by the learned Chief Judicial Magistrate, Una, District Una, H.P., in Case No. 315-II-20, and affirmed by learned Sessions Judge, Una, District Una, H.P., vide judgment dated 20.07.2023, in CIS Registration No. 74 of 2023, is quashed and set-aside and the petitioner-accused is acquitted of the charge framed against her under Section 138 of the Act. Bail bonds, if any, stand discharged.
::: Downloaded on - 20/09/2023 20:37:40 :::CIS 914. Undisputedly, the total amount of cheque is Rs.1,10,000/-, however, the learned counsel for the petitioner .
submitted that the petitioner is a house wife and her husband works as a labourer, therefore, the imposition of the compounding fee may be reduced.
15. In case K. Subramanian vs. R. Rajathi (supra), of the Hon'ble Apex Court had issued the guidelines with respect to the imposition of compounding fee, which read as under:-
rt "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.
... ... ... ... ... ... ...::: Downloaded on - 20/09/2023 20:37:40 :::CIS 10
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 of recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end."
16. rt Therefore, taking into consideration the law laid down by the Hon'ble Apex Court (supra) and the financial condition of the petitioner, as she is a house wife, 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.3,000/- (rupees three thousand), only with the State Legal Services Authority, Shimla, H.P., within four weeks from today.
17. The petition stands disposed of accordingly, so also the pending miscellaneous application(s), if any.
( Sushil Kukreja ) th 20 September, 2023 Judge (virender) ::: Downloaded on - 20/09/2023 20:37:40 :::CIS