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2010 DIGILAW 2568 (PNJ)

Gurmej Chand v. Nirmaljit Kaur

2010-09-07

SABINA

body2010
JUDGMENT SABINA, J. Petitioner was tried for an offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). Vide judgment dated 7.7.2004 the trial Court convicted the petitioner for an offence under Section 138 of the Act. Vide order of the even date the trial Court sentenced the petitioner to undergo rigorous imprisonment for one year and to pay a fine of Rs.5000/-under Section 138 of the Act. The said judgment/order of conviction and sentence was upheld by the Appellate Court in appeal vide judgment dated 2.5.2005. Hence, the present petition. During the pendency of the petition, an application has been filed for permission to compound the offence. Learned counsel for the petitioner has submitted that now the petitioner has paid the cheque amount in question i.e. Rs.1,50,000/- to respondent No.1. Learned counsel for respondent No.1 has admitted the factum of payment of Rs.1,50,000/-by the petitioner to respondent No.1 and has submitted that respondent No.1 has no objection if the offence in question is allowed to be compounded. As per Section 147 of the Act ''every offence under the Act shall be compoundable." The Apex Court in the case of “Damodar S. Prabhu Vs. Sayed Babalal H. 2010(3) R.A.J. 180” has framed the following guidelines :- (i) In the circumstances, it is proposed as follows: (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10 % of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. (c) Similarly, 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 way of costs. (c) Similarly, 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 way of costs. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20 % of the cheque amount.” It has been further observed by the Apex Court that the competent Court can reduce the costs with regard to specific facts and circumstances of the case, while recording reasons in writing for such variance. In the present case, learned counsel for the petitioner has submitted that the fine as imposed by the trial Court has since been deposited by the petitioner. The petitioner is out of job and is consequently unable to pay by way of cost additional sum of 15 % of the cheque amount. Keeping in view the fact that the petitioner is out of job and is facing the criminal proceedings since the year 2001 and has deposited the fine as imposed by the trial Court and has paid the cheque amount in question to the respondent No.1, it would be just and expedient if the petitioner is directed to pay Rs.15,000/- by way of costs. Petitioner, who is present in person alongwith his counsel, has stated that he will deposit the said amount of costs within one month from today. Accordingly, the application seeking compounding of the offence is allowed. Consequently, the judgments of the courts below whereby the petitioner was convicted and sentenced for an offence under Section 138 of the Act are set aside. Petitioner is acquitted of the charge framed against him. Petitioner is directed to deposit Rs.15,000/- by way of costs with the Punjab State Legal Services Authority within one month from today, failing which this petition shall stands dismissed.