Himachal Pradesh High Court
Balkrishan Chibber vs Shri Rup Ram & Another on 9 August, 2024
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Balkrishan Chibber vs Shri Rup Ram & another Cr. Revision No. 278 of 2023 Reserved on 30.07.2024 09.08.2024 Present: Mr. Sanjay Bhardwaj, Advocate, for the petitioner.
Mr. P.S.Goverdhan, Senior Advocate, with Mr. Rakesh Thakur, Advocate, for respondent No.1.
Mr. Lokender Kutlehria, Additional Advocate General, for respondent N. 2/State.
Cr.MP No. 3088 of 2024 The applicant has filed the present application for compounding of the offence. It has been asserted that the applicant has already paid the entire compensation to the complainant, the offence be compounded. The judgement of conviction dated 03.03.2020 and order of sentence dated 09.03.2020 passed by the learned Trial Court, as affirmed by the learned First Appellate Court be set aside on 21.02.2023.
The applicant is a poor person and he be exempted from depositing the compounding fee.
2. Learned counsel for the non-applicant/accused submitted that the amount has been received by the complainant and he has no objection in case the application ::: Downloaded on - 09/08/2024 20:39:34 :::CIS 2 .
is allowed and the matter is disposed of in view of the composition.
3. Learned counsel for the applicant has submitted that the petition be disposed of as per the compromise effected between the parties and an exemption be granted to the petitioner from payment of the composition fee directed to be paid by the Hon'ble Supreme Court.
6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
7. The Hon'ble Supreme Court held in M.P. State Legal Services Authority vs. Prateek Jain, (2014) 10 SCC 690, that the purpose of laying down the guideline was to discourage the people from contesting the complaints and then compounding the matter when they are driven to the wall. This leads to clogging the docket of the Court, therefore, the parties should be permitted to compound the offence at the earliest to save time of the Court and the complainant. It was observed:-
"19. The purpose of laying down the Guidelines in Damodar S. Prabhu [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663: (2010) 2 SCC (Civ) 520: (2010) 2 SCC (Cri) 1328] is explained in the said judgment itself. The Court in that case was ::: Downloaded on - 09/08/2024 20:39:34 :::CIS 3 .
concerned with the stage of the case when compounding of the offence under Section 147 of the Act is to be permitted. To put it otherwise, the question was as to whether such a compounding can be only at the trial court stage or is it permissible even at the appellate stage. It was noted that even before the insertion of Section 147 of the Act, by way of amendment in the year 2002, some High Courts had permitted the compounding of offence contemplated by Section 138 of the Act during the later stages of litigation.
This was so done by this Court also in O.P. Dholakia v. State of Haryana [(2000) 1 SCC 762:
2000 SCC (Cri) 310] and in some other cases which were noticed by the Bench. From these judgments, the Court concluded that the compounding of offence at later stages of litigation in cheque-bouncing cases was held to be permissible.
20. While holding so, the Court also took note of the phenomena which was widely prevalent in the manner in which cases under Section 138 of the Act proceed in this country. It noticed that there was a tendency on the part of the accused persons to drag on these proceedings and resort to the settlement process only at a stage when the accused persons were driven to the wall. It is for this reason that most of the complaints filed result in compromise or settlement before the final judgment on the one side and even in those cases where judgment is pronounced and conviction is recorded, such cases are settled at the appellate stage. This was so noted in paras 18- 19 of the judgment [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328], which read as under:
(Damodar S. Prabhu case [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328], SCC pp. 670-
71) ::: Downloaded on - 09/08/2024 20:39:34 :::CIS 4 .
"18. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised by the learned Attorney General that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit during the later stages of litigation thereby contributing to undue delay in justice delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. Furthermore, the written submissions filed on behalf of the learned Attorney General have stressed the fact that unlike Section 320 CrPC, Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court.
19. As mentioned earlier, the learned Attorney General's submission is that in the absence of statutory guidance, parties are choosing compounding as a method of last resort instead of opting for it as soon as the Magistrates take cognizance of the complaints. One explanation for such behaviour could be that the accused persons are willing to take the chance of progressing through the various stages of litigation and then choose the route of settlement only when no other route remains. While such behaviour may be viewed as rational from the viewpoint of litigants, the hard facts are that the undue delay in opting for compounding contributes to the arrears pending before ::: Downloaded on - 09/08/2024 20:39:34 :::CIS 5 .
the courts at various levels. If the accused is willing to settle or compromise by way of compounding the offence at a later stage of litigation, it is generally indicative of some merit in the complainant's case. In such cases, it would be desirable if parties choose compounding during the earlier stages of litigation. If however, the accused has a valid defence such as a mistake, forgery or coercion among other grounds, then the matter can be litigated through the r specified forums."
This particular tendency had prompted the Court to accept the submission of the Attorney General to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence inasmuch as such a requirement of deposit of the costs will act as a deterrent for delayed composition since free and easy compounding of the offences at any stage, however belated, was given incentive to the drawer of the cheque to delay settling of cases for years. For this reason, the Court framed the guidelines permitting compounding with the imposition of varying costs depending upon the stage at which the settlement took place in a particular case.
21. After formulating "The Guidelines", which are already extracted above, the Court made very pertinent observations in paras 24-26 of the said judgment [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] which would have a bearing in the present case. Thus, we reproduce the same below:
(Damodar S. Prabhu case [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663: (2010) 2 SCC (Civ) 520: (2010) 2 SCC (Cri) 1328], SCC p. 673) "24. We are also conscious of the view that the judicial endorsement of the above-
quoted Guidelines could be seen as an act of ::: Downloaded on - 09/08/2024 20:39:34 :::CIS 6 .
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 CrPC cannot be followed in a 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.
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. Bona fide litigants should of course contest the proceedings to their logical end.
26. 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."
::: Downloaded on - 09/08/2024 20:39:34 :::CIS 7.
It is clear from the reading of the aforesaid paragraphs that the Court made it clear that framing of the said Guidelines did not amount to judicial legislation. In the opinion of the Court, since Section 147 of the Act did not carry any guidance on how to proceed with compounding the offences under the Act and Section 320 of the Code of Criminal Procedure, 1973 could not be followed in a strict sense in respect of the offences pertaining to Section 138 of the Act, there was a legislative vacuum which prompted the Court to frame those guidelines to achieve the following objectives:
(i) to discourage litigants from unduly delaying the composition of the offences in cases involving Section 138 of the Act;
(ii) it would result in encouraging compounding at an early stage of litigation saving valuable time of the court which is spent on the trial of such cases; and
(iii) even though the imposition of costs by the competent court is a matter of discretion, the scale of costs had been suggested to attain uniformity.
At the same time, the Court also made it abundantly clear that the court concerned would be at liberty to reduce the costs with regard to specific facts and circumstances of a case while recording reasons in writing for such variance.
22. What follows from the above is that normally costs as specified in the Guidelines laid down in the said judgment [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] have 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 court concerned. It is for this reason that the Court mentioned three ::: Downloaded on - 09/08/2024 20:39:34 :::CIS 8 .
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 that judgment [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663: (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] 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 situations.
23. Having regard thereto, we are of the opinion that even when a case is decided in the Lok Adalat, the requirement of following the Guidelines contained in Damodar S. Prabhu [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 :
(2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] should normally not be dispensed with. However, if there is a special/specific reason to deviate therefrom, the court is not remediless as Damodar S. Prabhu [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663: (2010) 2 SCC (Civ) 520: (2010) 2 SCC (Cri) 1328] itself has given discretion to the court concerned 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 the 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 court concerned 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 ::: Downloaded on - 09/08/2024 20:39:34 :::CIS 9 .
delineated in Damodar S. Prabhu [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663:
(2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] on the one hand and the public interest which is sought to be achieved by encouraging settlements/resolution of case through the Lok Adalats on the other hand.
8. Thus, the normal rule is the money ordered to be paid by the Hon'ble Supreme Court has to be deposited after the settlement to discourage the like-
minded person from contesting the complaints, which ultimately ends in the settlement. If the matter is to be settled, the same should be settled in the Court of first instance at the first opportunity. The exception can be created as per the circumstances of the case. Reliance was placed upon the judgment of this Court in Geeta Ram vs UCO Bank, Criminal Revision No. 114 of 2024, decided on 03.04.2024 in which this Court had noticed that the accused had availed an agricultural loan and the lockdown was imposed. The accused defaulted in payment of the loan and could not settle the matter.
This is a classic example where the exception has to be created because the circumstances were beyond the control of the accused and the accused defaulted due to the COVID-19 pandemic and the imposition of the ::: Downloaded on - 09/08/2024 20:39:34 :::CIS 10 .
lockdown which had brought the country to a standstill. These circumstances do not exist in the present case; at least there is no mention in the application, hence, this judgment will not assist the applicant. Reliance was also placed on the judgment of this Court in Karam Singh vs Bhumi Prakash along with connected matters, Criminal Revision No. 352 of 2018, decided on 08.04. 2019, in which a token compounding fee of ₹2000/- was imposed. However, no reason was assigned for doing so and this judgment will not help in determining the circumstances in which the exemption can be created.
9. A perusal of the judgments of the learned Courts below shows that a cheque of ₹15,00,000/- was issued and compensation of ₹16,00,000/- was imposed by the Court, which was affirmed by the learned Appellate Court. As per averments made in the application, the accused has paid the entire amount of compensation to the complainant which means that he has paid ₹16,00,000/-. A person paying ₹16,00,000/-
cannot call himself poor and the plea taken by him that he is a poor person and should be exempted from ::: Downloaded on - 09/08/2024 20:39:34 :::CIS 11 .
depositing fees is not acceptable.
10. Thus, there is no reason to exempt the accused from the payment of 15% of the amount ordered to be paid by the Hon'ble Supreme Court in Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663.
Hence, the applicant is directed to deposit 15% of the cheque amount with the Member Secretary, H.P. State Legal Services Authority, Kasumpti, Shimla-9 within two weeks.
11. Consequently, the application fails and the same is dismissed .
Cr. Revision No. 278 of 202312. List for compliance after two weeks.
(Rakesh Kainthla) Judge 09th August, 2024 (Ravinder) ::: Downloaded on - 09/08/2024 20:39:34 :::CIS