Himachal Pradesh High Court
Rajiv Mohammad vs State Bank Of India on 12 March, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Revision No. 301 of 2017.
Date of decision: 12th March, 2018.
Rajiv Mohammad .......Petitioner.
Versus
State Bank of India ......Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? 1No For the Petitioner : Mr. G.R.Palsra, Advocate.
For the Respondent : Mr.Anil God, Advocate vice Mr.Arvind Sharma, Advocate.
Tarlok Singh Chauhan, Judge (Oral).
Looking to the nature of order, I propose to pass, it is not at all necessary to deal with the facts in detail. Suffice it to state that the complainant-respondent filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act (for short 'Act') which after trial was allowed by the trial Magistrate and the petitioner was ordered to be convicted and sentenced to undergo simple imprisonment for a period of six months and to pay compensation in the sum of Rs.1,10,000/- to the complainant-respondent. In default of payment of fine, the petitioner was further directed to undergo simple imprisonment for a period of one month. The petitioner filed an appeal assailing the aforesaid conviction and sentence and the same was upheld by the learned Additional Sessions Judge (I), Mandi, District Mandi, H.P. It is thereafter that the petitioner has filed the instant revision petition Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 13/03/2018 23:51:54 :::HCHP 2 assailing the judgments of conviction and sentence as passed by the learned Courts below.
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2. Mr.Anil God, learned vice counsel for the respondent, states that a sum of Rs.4,000/- as is reflected in the order dated 05.03.2018, has not been deposited by the petitioner. His statement is vehemently opposed by Mr.G.R.Palsra, learned counsel for the petitioner. However, without further going into this controversy, he states that his client is ready to deposit an additional amount of Rs.4,000/- and, in fact, has prepared a bank draft of the said amount and he be permitted to deposit the same in the Registry of the Court.
3. It is not in dispute that the entire compensation amount now stands deposited either before this Court or before the trial Court.
The amount so deposited is ordered to be released in favour of the complainant-respondent as per procedure.
4. Since the entire amount stands deposited, learned vice counsel for the respondent states that his client is no longer interested in pursuing the instant lis and the same may be compounded.
5. From the records of the case, I find that this is not a case wherein the offence for which the petitioner has been charged can 'stricto sensu' be termed to be an offence against the State. Therefore, this is a case where the continuation of criminal case against the petitioner would put the petitioner to great oppression and prejudice and extreme injustice would be caused to him by not setting aside the impugned judgments of conviction and sentence.
6. This court is not powerless in such situation and adequate powers have been conferred upon it not only under sections 397 read with Section 401 or Section 482 Cr.P.C. (hereinafter referred to as the ::: Downloaded on - 13/03/2018 23:51:54 :::HCHP 3 Code) but also under Section 147 of the Act for accepting the settlement entered into between the parties and to quash the .
proceedings arising out of the proceedings, which have consequently culminated into a settlement. This power has been conferred to subserve the ends of justice or/ and to prevent abuse of the process of any Court. Though, such power is required to be exercised with circumspection and in cases which do not involve heinous and serious offence of mental depravity or offences like murder, rape, dacoity etc.
7. The moot question is whether the Court in such like cases can set aside the judgments of conviction and sentence where the petitioner has been charged under Section 138 of the Act. This question need not detain this Court any longer in view of the three Judges Bench decision of the Hon'ble Supreme Court in Parbatbhai Aahir @ Parbatbhai and others versus State of Gujarat and another, Criminal Appeal No. 1723 of 2017, decided on 4th October, 2017, wherein after taking into consideration the entire law on the subject, the Hon'ble Supreme Court has laid down the following broad principles for exercise of powers under Section 482 of the Code which read thus:-
"(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.::: Downloaded on - 13/03/2018 23:51:54 :::HCHP 4
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, .
the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions
(viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High ::: Downloaded on - 13/03/2018 23:51:54 :::HCHP 5 Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or .
misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
8. Since, the petitioner has already deposited the entire compensation amount, therefore, quashing of the complaint initiated at the instance of the complainant/respondent would be a step towards securing the ends of justice and to prevent abuse of process of the Court. r
9. Keeping in mind the aforesaid exposition of law, it is clear that the facts of this case do not in any manner fall within any of the exceptions culled out by the Hon'ble Supreme Court in Parbatbhai Aahir's case (supra).
10. Thus, taking holistic view of the matter and further taking into consideration all the attending facts and circumstances as also the law laid down by the Hon'ble Supreme Court in Parbatbhai Aahir's case (supra), I find this to be a fit case to exercise the powers not only under Sections 397, 401 and Section 482 of the Code, but even under Section 147 of the Act.
11. Accordingly, judgment dated 28.07.2017 passed by the learned Additional Sessions Judge (I), Mandi, District Mandi, H.P. in Criminal Appeal No.83/2015, whereby he upheld the judgment passed by the learned Judicial Magistrate Ist Class, Court No.2, Sundernagar, District Mandi, H.P. on 10.06.2015, in Criminal Complaint No.340- I/2013,110-III/2008, convicting and sentencing the petitioner to undergo simple imprisonment for a period of six months with default clause and to pay compensation in the sum of Rs.1,10,000/- to the complainant-
::: Downloaded on - 13/03/2018 23:51:54 :::HCHP 6respondent, are set aside. Consequently, the petitioner is acquitted of the offence under Section 138 of the Act.
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12. The revision petition is disposed of in the aforesaid terms, so also the pending application(s), if any.
12th March, 2018. (Tarlok Singh Chauhan),
(krt) Judge.
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