Delhi District Court
Sh. Harswaroop vs Sh. Prem Raj @ Rajesh on 5 September, 2019
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
CA Number : 44/19
CC No. : 44183/16
U/S: : 138 NI Act
Sh. Harswaroop,
Section Officer ( Horticulturew),
R/o House No. 115,
Yamuna Vihar Colony,
Sector-49,
Barolla,
Gautam Budh Nagar, NOIDA
.................. Appellant.
Versus
Sh. Prem Raj @ Rajesh
S/o Late Sh. Hari Singh,
r/o 11, Rajpur Road,
Civil Lines,
Delhi. ................Respondent.
Date of receipt of file in this Court : 27.02.2019
Date when arguments were heard : 05.09.2019
Date of judgment : 05.09.2019
JUDGMENT
1. This judgment shall dispose of the above said criminal appeal arising out of impugned judgment dated 30.01.2019 and order on sentence dated 04.02.2019 passed by the trial court of Ms. Neetu CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 1 of 9 Sharma, Learned MM, PHC, New Delhi in proceedings arising out of CC no. 44183/2016 under section 138 NI Act in matter titled as Prem Raj @ Rajesh Vs. Harswaroop.
Vide the above said impugned judgment, the appellant / convict was convicted for the offence punishable under section 138 of The Negotiable Instruments Act, 1881 (in short NI Act) and vide above said impugned order on sentence dated 04.02.2019, the appellant/convict was sentenced to undergo one month simple imprisonment for commission of offence punishable u/s 138 N.I Act and a compensation of Rs. 3,00,000/- to be paid by convict to the complainant and in default of payment of compensation amount, the convict shall further undergo simple imprisonment for a period of one month. 2 I have already heard the arguments of the appellant/convict and Ld. Counsel for respondent/complainant. I have also perused the record including the trial court record.
3 As per the factual matrix of the case as mentioned in the complaint, the complainant/respondent and the accused/appellant were known to each other, have friendly relationship between them since last 4-5 years and during that relationship appellant borrowed money from the CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 2 of 9 respondent as per his requirement at various time and during this period of about five years, the respondent gave friendly loan from time to time, some of which were repaid by the appellant to the respondent in installments, till the end of August , 2015, the accused owed Rs. 6 lacs from the respondent against which on repeated demands the appellant gave cheques bearing no(s) 719621 and 719622, both dated 04.01.2016 of Rs. 1 lakh each, drawn on State Bank of India, Vikas Minar, Indraprastha Estate, New Delhi in discharge of his partial liability towards the respondent. On presentation, the said cheques were dishonoured for the reason "Funds Insufficient". Aggrieved with dishonour, respondent sent legal notice dated 25.01.2016 to appellant through his lawyer despite notice appellant failed to make payment in stipulated time which constrained the respondent to file the present complaint in the court.
Appellant was summoned, evidence of witnesses were recorded and after conclusion of trial he was convicted vide judgment dated 30.01.2019 and sentenced vide order dated 04.02.2019 and present appeal was preferred against the said orders. 4 Perusal of record shows that the appeal was received upon CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 3 of 9 assignment in this court on 27.02.2019 upon which notice of the appeal was issued to the respondent. During the pendency of appeal on 24.05.2019, both the parties stated that matter has been settled between them and appellant is ready and willing to make the payment to the accused/ respondent in view of the order on sentence passed by learned trial court. On their request matter was adjourned for for making payment to the respondent/complainant.
Today, both the parties submitted that compromise has been materialized, payment of the cheque amount as per order of the learned trial court has been made to the respondent/complainant by the appellant/accused and nothing remains due qua the said case. The statement of both the parties in that regard recorded in which appellant stated that the offence u/s 138 NI Act be compounded with a request for lenient view while imposing compounding costs in terms of judgment of Hon'ble Supreme Court of India in case Damodar S Prabhu Vs Sayed Baba Lal H., AIR 2010 SC 1907 mentioning that he has the responsibility of a family consisting of wife and two children, is a government servant, have no other means of income, it was his first conviction in any case and he undertook to be very careful in future. CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 4 of 9 Respondent/complainant stated that he has already received the total settled amount of Rs 3.5 lacs from the appellant, he had no objection if the offence u/s 138 NI Act qua the appellant/convict be compounded and also had no objection if a lenient view regarding imposition of costs was taken against the appellant.
5 The statements of appellant and the respondent /complainant were also recorded separately, which are as follows:-
05.09.2019 Statement of Sh. Harswaroop, R/o House No. 115, Yamuna Vihar Colony, Sector-49, Barolla, Gautam Budh Nagar, NOIDA On SA I am the accused/convict/appellant in the present case. I was accused in CC no. 44183/16 and have been convicted u/s 138 N.I.Act vide judgment dated 30.01.2019 and sentenced vide order on sentence dated 04.02.2019. I have settled and compromised the matter with the respondent/complainant out of my own free will and without any force or coercion. I have paid the total settled amount of Rs.3,50,000/- to the complainant and now nothing remains due against the respondent/complainant qua this case. I pray that the offence u/s 138 N.I.Act be compounded and a lenient view be taken against me. In view of judgment of the CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 5 of 9 Hon'ble Supreme Court of India titled as Damodar S Prabhu Vs. Sayed Baba Lal H., AIR 2010 SC 1907 I have deposited a sum of Rs. 30,000/- i.e. 15% of the cheque amount in the bank account of NDDLSA, PHC New Delhi. Copy of the same is Mark A. I pray for a lenient view as I have the responsibility of my family. I am also a government servant and have no other means of income. It is my first conviction in any case and I undertake to be very careful in future 05.09.2019 Statement of Sh Sh. Prem Raj @ Rajesh S/o Late Sh. Hari Singh, r/o 11, Rajpur Road, Civil Lines, Delhi.
On S.A I am the complainant/respondent in the present case. I have heard the statement of the appellant/convict/ accused which is correct. I have settled the matter with the appellant under section 138 N.I. Act without any force or coercion and have already received the total settled amount of Rs 3.5 lacs from the appellant. I have no objection if the offence u/s 138 N.I.Act is compounded and the appeal may be disposed of accordingly. I also have no objection if a lenient view regarding imposition of costs is taken against the appellant.
CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 6 of 9 6 It is a settled law that the offence u/s 138 N.I.Act is compoundable in view of section 147 NI Act. Section 147 NI Act provides as under :-
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.
It is further a settled law that since Section 147 NI Act was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the Cr.P.C, especially keeping in mind that section 147 carries a non-obstante clause. My views are substantiated by the judgment of Hon'ble Supreme Court of India in case titled as Damodar S Prabhu Vs. Sayed Baba Lal H., AIR 2010 SC 1907.
7 The Hon'ble Supreme Court of India in the above said matter of Damodar S. Prabhu (Supra ) has given the guidelines inter alia that 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 CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 7 of 9 way of costs and the costs imposed in accordance with the guidelines should be deposited with the Legal Services Authority operating at the level of the court before which the compounding takes place. The Hon'ble Supreme Court of India in the said matter further held that the competent court can of course reduce the costs with regard to the special facts and circumstances of the case, while recording reasons in writing for such variance.
8 It is evident from the above said statements of the parties that the parties have voluntarily compromised the matter and the settled amount of rupees three lacs has also been paid by the appellant to the respondent/complainant. In facts and as the offence u/s 138 NI Act is compoundable by virtue of section 147 NI Act, the offence u/s 138 NI Act qua appellant/convict is hereby compounded. Due to composition of the offence under section 138 NI Act, the appellant is acquitted under section 138 NI Act. The appellant has prayed for a lenient view mentioning that he has the responsibility of a family, is a government servant and has no other means of income, it is his first conviction in any case and has undertaken to be very careful in future. The respondent/ complainant has also given his no objection if a lenient CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 8 of 9 view regarding imposition of costs is taken against the appellant keeping in view the settlement between the parties. In these specific facts and circumstances, keeping in view the above said submissions of applicant/accused, the interest of justice would be served if the appellant is burdened with the costs of Rs. 30,000/- to be deposited with New Delhi District Legal Services Authority (NDDLSA) in terms of judgment Damodar S. Prabhu (Supra ). The bank receipt qua deposit of the said amount has been furnished on record by the appellant. 9 The impugned judgment dated 30.01.2019 and order on sentence dated 0402.2019 both qua the appellant/convict are accordingly set aside in view of the composition of the offence under section 138 NI Act.
10 The present appeal is disposed of in terms of above said judgment.
11 Appeal file be consigned to record room as per rules.
Announced in the open
Court on 05.09.2019 (ANIL ANTIL)
ADDITIONAL SESSIONS JUDGE-04
NEW DELHI DISTRICT,
PATIALA HOUSE COURTS
NEW DELHI
05.09.2019
CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 9 of 9
CA Number 44/19
CC No. 4183/16
U/S: 138 NI Act
Sh. Harswaroop Vs. Prem Raj @ Rajesh
05.09.2019
Present : Appellant/convict/accused in person with Sh. Nitin Jain,
learned counsel.
Respondent/complainant in person.
It is submitted that both the parties have settled and compromised the matter out of their own free will and without any force or coercion and in compliance to that appellant/accused has paid the total settled amount of Rs.3,50,000/- to the complainant/ respondent and now nothing remains due qua this case. It is also submitted that in compliance of judgment of the Hon'ble Supreme Court of India in a case titled as Damodar S Prabhu Vs. Sayed Baba Lal H., AIR 2010 SC 1907 appellant/accused had deposited the sum of Rs. 30,000/- i.e. 15% of the cheque amount with the NDDLSA, PHC New Delhi in their bank account. Copy of the same Mark A-1 is filed on record. It is prayed that they both be allowed to compound the offence u/s 138 N.I.Act and matter be disposed of accordingly.
The appellant has also prayed for a lenient view mentioning that he has the responsibility of a family it is his first conviction and has undertake to be very careful in future to which the respondent/ complainant has no objection. Let the statement of both the parties be CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 10 of 9 recorded.
Separate statements recorded accordingly. Arguments heard on the appeal.
Vide separate judgment, the offence u/s 138 NI Act qua appellant/convict is compounded and due to composition of the offence u/s 138 NI Act, the appellant is acquitted u/s 138 NI Act. The impugned judgment dated 30.01.2019 and order on sentence dated 04.02.2019 are accordingly set aside in view of the composition of the offence u/s 138 NI Act. The appellant has however, been burdened with costs of Rs.30,000/- to be deposited with New Delhi District Legal Services Authority (NDDLSA) vide reasons as mentioned in the judgment in view of the judgment of Hon'ble Supreme Court of India in case titled as Damodar S Prabhu Vs. Sayed Baba Lal H., AIR 2010 SC 1907.
At this stage, the above said receipt (Mark A) showing the payment of costs of Rs.30,000/-with NDDLSA has been placed on record by the appellant/convict.
Copy of order be sent to learned trial court.
Appeal file be consigned to record room as per rules.
( Anil Antil ) Addl. Sessions Judge-04, New Delhi District, Patiala House Courts New Delhi/05.09.2019 CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 11 of 9 CA Number 44/19 CC No. 4183/16 U/S: 138 NI Act Sh. Harswaroop Vs. Prem Raj @ Rajesh 05.09.2019 Statement of Sh. Harswaroop, R/o House No. 115, Yamuna Vihar Colony, Sector-49, Barolla, Gautam Budh Nagar, NOIDA On SA I am the accused/convict/appellant in the present case. I was accused in CC no. 44183/16 and have been convicted u/s 138 N.I.Act vide judgment dated 30.01.2019 and sentenced vide order on sentence dated 04.02.2019. I have settled and compromised the matter with the respondent/complainant out of my own free will and without any force or coercion. I have paid the total settled amount of Rs. 3,50,000/- to the complainant and now nothing remains due against the respondent/complainant qua this case. I pray that the offence u/s 138 N.I.Act be compounded and a lenient view be taken against me. In view of judgment of the Hon'ble Supreme Court of India titled as Damodar S Prabhu Vs. Sayed Baba Lal H., AIR 2010 SC 1907 I have deposited a sum of Rs. 30,000/- i.e. 15% of the cheque amount in the bank account of NDDLSA, PHC New Delhi. Copy of the same is Mark A. I pray for a CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 12 of 9 lenient view as I have the responsibility of my family. I am also a government servant and have no other means of income. It is my first conviction in any case and I undertake to be very careful in future RO&AC ( Anil Antil ) Addl. Sessions Judge-04, New Delhi District, Patiala House Courts New Delhi/05.09.2019 CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 13 of 9 CA Number 44/19 CC No. 4183/16 U/S: 138 NI Act Sh. Harswaroop Vs. Prem Raj @ Rajesh 05.09.2019 Statement of Sh Sh. Prem Raj @ Rajesh S/o Late Sh. Hari Singh, r/o 11, Rajpur Road, Civil Lines, Delhi. On S.A I am the complainant/respondent in the present case. I have heard the statement of the appellant/convict/ accused which is correct. I have settled the matter with the appellant under section 138 N.I. Act without any force or coercion and have already received the total settled amount of Rs 3 lacs from the appellant. I have no objection if the offence u/s 138 N.I.Act is compounded and the appeal may be disposed of accordingly. I also have no objection if a lenient view regarding imposition of costs is taken against the appellant.
RO&AC ( Anil Antil ) Addl. Sessions Judge-04, New Delhi District, Patiala House Courts New Delhi/05.09.2019 CA no. 44/19 Harswaroop Vs. Prem Raj @ Rajesh Page no. 14 of 9