Himachal Pradesh High Court
Shri Krishan Kumar vs Shri Pawan Kumar & Anr on 24 May, 2016
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL
PRADESH,SHIMLA.
.
Cr.MP(M) No.522 of 2016 a/w
Criminal Revision No. 125 of 2016.
Date of decision: 24.05.2016.
_____________________________________________________
Shri Krishan Kumar ..... Petitioner.
of
Versus
Shri Pawan Kumar & Anr. .... Respondents.
Coram
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The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?
For the Petitioner : Mr. L.S. Mehta, Advocate.
For the Respondents : Mr. VirenderSharma, Advocate,
for respondent No.1.
Mr. Pankaj Negi, Deputy
Advocate General, for
respondent No.2.
Vivek Singh Thakur, J(Oral).
Cr.MP(M) No.522 of 2016
1. For the reasons stated in the application duly supported by an affidavit, the same is allowed and delay in filing the revision petition is condoned. Application stands disposed of.
_____________________ Whether the reporters of the local papers may be allowed to see the Judgment?
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Petition be registered.
Criminal Revision No. 125 of 2016.
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2. Fresh notice need not to be issued to respondents as they are duly represented by their respective counsel.
3. It is submitted by learned counsel for petitioner that since last two months i.e. from 31.3.2016, the petitioner is in Model of Central Jail, Nahan for serving sentence imposed upon him vide impugned judgments. He has further stated that entire amount of rt compensation Rs.2,30,000/- has been paid to respondent and matter has been amicable settled between the parties and Smt Purva Devi wife of Krishan Kumar and respondent Pawan Kumar are present in the Court. Smt. Purva Devi wife of Krishan Kumar has been duly identified by learned counsel for petitioner and respondent has been identified by learned counsel for respondent.
4. The present petition has been filed by petitioner Krishan Kumar, assailing judgment dated 18.9.2013 passed in Criminal Complaint No.670-1/2007-384-1/13 titled as Pawan Kumar vs. Krishan Kumar by learned Special Judicial Magistrate, Kullu as affirmed vide judgment dated 1.5.2015 passed in Criminal appeal No.126/2013 titled Krishan Kumar vs. Pawan Kumar by learned Sessions Judge, Kullu for quashing and setting aside his ::: Downloaded on - 15/04/2017 20:25:52 :::HCHP ...3...
conviction and sentence of simple imprisonment for a period of six months and to pay compensation of Rs.2,30,000/- to the .
complainant imposed under Section 138 of the Negotiable Instruments Act, 1881 (for short Act) .
5. The parties have amicably resolved their disputes for which separate statement of respondent Pawan Kumar has been of recorded. He has stated that he has received entire amount of compensation and in view of amicable settlement he has prayed rt that the matter may be allowed to be compounded and he may be permitted to withdraw complaint filed by him.
6. Consequently, matter is permitted to be compounded and complaint arising out from dis-honour of cheque bearing No.5599353 under Section 138 of the Negotiable Instruments Act is permitted to be withdrawn and judgments of conviction and sentence passed by Courts below are ordered to be quashed and set aside. The petitioner/accused is acquitted of the accusation framed against him.
7. It is submitted by learned counsel for petitioner that the petitioner is in jail since last two months and has already served 1/3rd sentence of simple imprisonment imposed upon him and petitioner has no regular source of income and it would be in ::: Downloaded on - 15/04/2017 20:25:52 :::HCHP ...4...
the interest of justice, not to impose cost for compounding the case. In this context, he has relied upon judgment passed by the .
Apex Court reported in Madhya Pradesh State Legal Services Authority vs. Prateek Jain and another 2014(10) SCC 690, in which referring judgment reported in Damodar S. Prabhu Versus Sayed Babalal H. 2010(5) SCC 663, the Hon'ble Supreme Court of has held as under :-
"21 After formulating "The Guidelines", which are already rt extracted above, the Court made very pertinent observations in para 17 of the said judgment which would have bearing in the present case. Thus, we reproduce the same below:"
24. We are also conscious of the view that the judicial endorsement of the above quoted guidelines could be seen as an act of 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 of the CrPC cannot be followed in the 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 ::: Downloaded on - 15/04/2017 20:25:52 :::HCHP ...5...
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 of 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. rt
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."
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 147of the Act did not carry any guidance on how to proceed with compounding of the offences under the Act and Section 320 of the Code of Criminal Procedure, 1973 could not be followed in strict sense in respect of 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 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 ::: Downloaded on - 15/04/2017 20:25:52 :::HCHP ...6...
(iii) even though imposition of costs by the competent Court is a matter of discretion, the scale of cost had been suggested to attain uniformity.
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At the same time, the Court also made it abundantly clear that the concerned Court 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."
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8. Since the petitioner is in jail and has already served a considerable portion of sentence imposed upon him, also keeping in view of his family circumstances and law laid down by Hon'ble rt Supreme Court, it would be appropriate that instead of imposing compounding fee/cost amounting to 15% of cheque amount 5% of cheque amount i.e. Rs.10,000/- compounding fee/cost is imposed upon the petitioner. Petitioner is in jail, therefore, two months time is granted him to deposit compounding fee/cost with H.P. State Legal Service Authority, Shimla.
9 Petitioner is ordered to be released henceforth, if not required in any other offence.
10 After depositing compounding fee/cost, petitioner shall place copy of receipt of deposit on record of this petition. In case of default in depositing compounding fee/cost with H.P. State Legal Service Authority, Shimla within two months, the judgments of conviction and sentence would automatically revive.
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11. In view of above, petition stands disposed of, so .
also the pending application, if any.
Authenticated copy as per rule, be supplied to the petitioner.
May 24, 2016 (Vivek Singh Thakur),
of
(sks) Judge.
rt
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