Himachal Pradesh High Court
Natwar Singh S/O Sh. Devinder Singh vs Natwar Singh And Further To Quash The ... on 8 September, 2022
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF SEPTEMBER, 2022
BEFORE
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
.
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No.831 of 2022
Between:-
NATWAR SINGH S/O SH. DEVINDER SINGH,
R/O VILL. GAWANA, P.O. KUTARA,
TEHSIL ROHRU, DISTRICT SHIMLA, H.P.
THROUGH NEXT FRIEND SH. DIWAKAR NEGI
S/O SH. AMRIT SINGH, R/O VILLAGE GAWANA,
P.O. KUTARA, TEHSIL ROHRU, DISTRICT SHIMLA,
H.P.
...PETITIONER
(BY MR. VIRBAHADUR VERMA, ADVOCATE)
AND
1. RAJ KUMAR S/O SH. KAMLA NAND,
R/O VILLAGE BANOTI, P.O. DEVIDHAR,
TEHSIL CHIRGAON, DISTRICT SHIMLA, H.P.
2. STATE OF HIMACHAL PRADESH THROUGH
SECRETARY (HOME)
...RESPONDENTS
(BY MR. K.B. KHAJURIA, ADVOCATE, FOR R-1)
(MR. ARVIND SHARMA, ADDL. A.G, MR. GAURAV SHARMA,
MR. KAMAL KISHORE AND MS. DIVYA SOOD, DY. AGS, FOR R-
2)
1
WHETHER APPROVED FOR REPORTING? Yes.
This petition coming on for orders this day, the Court passed
the following :
ORDER
The present petition maintained under Section 482 Cr.P.C to compound the offence committed by the petitioner under Section 138 of the Negotiable Instruments Act, in Case No.33-3 of 2018 titled Raj Kumar vs. Natwar Singh and further to quash the sentence of six months awarded to the petitioner alongwith all consequential proceedings arising out of the said F.I.R; pending before the learned trial Court.
1Whether reporters of Local Papers may be allowed to see the judgment ? Yes.
::: Downloaded on - 08/09/2022 20:09:37 :::CIS 22. Precisely, the facts of the case, as emerge from the record are that respondent No.1-complainant instituted a complaint under Section 138 of the Negotiable Instruments Act, that he owns an apple .
orchard at village Banoti. The petitioner-accused was dealing in business of apples at Subzi Mandi, Rohru. During apple season 2017, he sold his apple crop to the petitioner. The petitioner was having liability of Rs.88,000/- to discharge liability towards respondent No.1-complainant in the said consideration. The petitioner issued a cheque amounting to Rs.88,000/- drawn on Punjab National Bank, Rohru, in his favour.
Thereafter, the said cheque presented for collection through Punjab National Bank, Devidhar, the same was dishonoured due to Insufficient funds. Respondent No.1 issued a legal notice to the petitioner by registered post on 16.12.2017, whereby the petitioner was called upon to make payment of the cheque amount within the statutory period of 15 days from the receipt of notice. Despite delivery of notice, the petitioner failed to respond it. Hence, the present petition.
3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment dated 31.12.2018, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him to undergo simple imprisonment for six months and pay compensation to the tune of Rs. 90,000/- and in default of payment of compensation the convict shall further undergo simple imprisonment for a period of one month.
4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, accused preferred an appeal in the court of learned Additional Sessions Judge, (II), Shimla camp at Rohru, District Shimla, H.P., which also came to be dismissed vide judgment dated 9.7.2021, as a consequence of which, judgment of ::: Downloaded on - 08/09/2022 20:09:37 :::CIS 3 conviction recorded by the learned trial Court came to be upheld. Since after recording of the afore judgment, petitioner entered into compromise with the complainant and paid the entire amount of compensation, he has .
approached this Court by way of instant proceedings for compounding of offence and thereafter his acquittal after setting aside the judgments of conviction recorded by the courts below.
5. While inviting attention of this Court to the compromise (Annexure P-3), Mr. V.B. Verma, learned counsel for the petitioner, argued that since entire payment of compensation awarded by the learned trial court stands paid to the respondent No.1-complainant, this Court while exercising power under Section 482 Cr.PC can quash the judgment of conviction and order of sentence recorded by the learned trial court.
6. Mr. K.B. Khajuria, learned counsel for respondent No.1- complainant, while fairly admitting factum with regard to compromise arrived inter-se parties, submitted that since entire amount of compensation awarded by the court below stands received by respondent No.1-complainant, he shall have no objection in case judgment of conviction and order of sentence recorded by the learned trial court is quashed and set-aside and offence alleged to have been committed by the petitioner under Section 138 of the Act, is ordered to be compounded while exercising power under Section 147 of the Act.
7. Since the petition has been filed under Section 482 Cr.PC, this Court deems it fit to consider the present petition in the light of the judgment passed by Hon'ble Apex Court in Narinder Singh and others versus State of Punjab and another ( 2014) 6 Supreme Court Cases 466, whereby Hon'ble Apex Court has formulated guidelines for accepting the settlement and quashing the proceedings or refusing to ::: Downloaded on - 08/09/2022 20:09:37 :::CIS 4 accept the settlement with direction to continue with the criminal proceedings. Perusal of judgment referred above clearly depicts that in para 29.1, Hon'ble Apex Court has returned the findings that power .
conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under section 320 of the Code. No doubt, under section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with great caution. Para Nos. 29 to 29.7 of the judgment are reproduced as under:-
"29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:
29.1Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.
29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any Court.
While exercising the power under Section 482 Cr.P.C the High Court is to form an opinion on either of the aforesaid two objectives.
29.3. Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public ::: Downloaded on - 08/09/2022 20:09:37 :::CIS 5 Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.
29.4. On the other, those criminal cases having overwhelmingly and .
predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.
29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.
29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.
29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role.
Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the ::: Downloaded on - 08/09/2022 20:09:37 :::CIS 6 matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, .
therefore, there is no question of sparing a convict found guilty of such a crime".
"32. We find from the impugned order that the sole reason which weighed with the High Court in refusing to accept the settlement between the parties was the nature of injuries. If we go by that factor alone, normally we would tend to agree with the High Court's approach. However, as pointed out hereinafter, some other attendant and inseparable circumstances also need to be kept in mind which compels us to take a different view.
33. We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute, etc. is not stated in detail. However, a very pertinent statement appears on record viz. "respectable persons have been trying for a compromise up till now, which could not be finalized." This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conduced medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14.7.2010 registered with police station Lopoke, District Amritsar Rural be quashed. We order accordingly."
8. The Hon'ble Apex Court in case Gian Singh v. State of Punjab and anr. (2012) 10 SCC 3 03 has held that power of the High Court in quashing of the criminal proceedings or FIR or complaint in exercise of its inherent power is distinct and different from the power of a Criminal Court for compounding offences under Section 320 Cr.PC. Even in the judgment passed in Narinder Singh's case, the Hon'ble Apex Court has held that while exercising inherent power under Section 482 Cr.PC the Court must have due regard to the nature and gravity of the ::: Downloaded on - 08/09/2022 20:09:37 :::CIS 7 crime and its social impact and it cautioned the Courts not to exercise the power for quashing proceedings in heinous and serious offences of mental depravity, murder, rape, dacoity etc. .
9. Since the matter stands compromised between the parties, prayer made in the petition at hand can be accepted. In Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663 , the Hon'ble Apex Court has categorically held that court, while exercising power under Section 147 of the Act, can proceed to compound the offence even after recording of conviction by the courts below.
10. Consequently, in view of the above, present matter is ordered to be compounded and impugned judgments of conviction and sentence passed by the learned courts below are quashed and set-aside and the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act. Since the case is quashed on the basis of compromise inter se the parties and taking into consideration all other circumstances, which have come on record, after concluding that the present is a fit case where the case is ordered to be quashed, it is ordered that the petitioner-accused, who is behind the bars be released immediately forthwith in this case, if not required in any other case.
11. The petition is accordingly disposed of alongwith pending applications, if any.
( Chander Bhusan Barowalia ) Judge 8th September, 2022 (CS) ::: Downloaded on - 08/09/2022 20:09:37 :::CIS