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2011 DIGILAW 47 (JHR)

Krishna Prasad v. State of Jharkhand

2011-01-21

D.K.SINHA

body2011
Order This criminal revision is directed against the order dated 2.12.2009 passed by VIth Additional Judicial Commissioner (FTC.), Ranchi by which the conviction of the petitioner under Section 138 of the Negotiable Instruments Act by the Court of Sri. R.S. Mishra, Judicial Magistrate, 1st Class. Ranchi in Complaint Case No. 170/2000 on 21.2.2009 was affirmed and the Criminal Appeal No. 49 of 2009 was dismissed on 2.12.2009. 2. Petitioner was held guilty under Section 138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and was directed to pay Rs. 50,000/- by way of compensation to the complainant-opposite party No.2 herein under Section 357(3) of the Code of Criminal Procedure for the loss suffered by him. 3. Opposite Party No.2 Harbansh Singh Deal appeared in this criminal revision on receipt of the notice and filed the counter-affidavit. 4. During pendency of this criminal revision a compromise petition has been filed on 23.8.2010 wherein it has been laid down that due to intervention of the well wishers and common friends the dispute has been settled amicably outside the court between the parties, as such, opposite party No.2 has no grievance against the petitioner and under the circumstances, opposite party No.2 is not willing now to proceed further against the petitioner as the matter has already been settled. It is requested therein to allow the present compromise petition and to pass appropriate order. This petition has been supported by the affidavit duly sworn by the petitioner Krishna Prasad and the opposite party No.2 Harbansh Singh Deal. In support thereof, supplementary affidavit has been filed on behalf of the petitioner on 25.10.2010 stating therein that the petitioner has given cash amount to the tune of Rs.19,500/- in the hand of the opposite party no. 2 Harbansh Singh Deal, proprietor of Deal Financiers on 21.10.2010 against the receiving receipt on his pad out of the cheque amount to the tune of Rs.1,30,000/-. Xerox copy of the receipt issued by the opposite party no. 2 has been annexed and marked as Annexure-3. 5. Opposite Party No.2, in his counter-affidavit, which has been filed on 3.11.2010, has stated that the dispute has been amicably settled between the parties and as such, opposite party no. Xerox copy of the receipt issued by the opposite party no. 2 has been annexed and marked as Annexure-3. 5. Opposite Party No.2, in his counter-affidavit, which has been filed on 3.11.2010, has stated that the dispute has been amicably settled between the parties and as such, opposite party no. 2 is not willing to proceed with the matter further and has no objection if the impugned judgments would be set aside in view of the compromise petition, which has already been brought on the record of the Cr. Rev. No. 557 of 2010 in the form of I.A. No. 2052/10. Counter affidavit was signed and verified by the opposite party no. 2 whose signature was duly identified. Xerox copy of his Permanent Account Number (PAN) has also been annexed with the counter-affidavit. 6. By filing separate I.A. No. 2742/10 on 14.12.2010, the petitioner as well as the opposite party no. 2 herein have contended that no case is pending concerned with the instant case in any court of law and that they have already settled their dispute outside the court, contents of which have been supported by the petitioner and the opposite party no. 2 on affidavits separately. 7. By filing third I.A. No.105/11, pursuant to the compromise petition filed earlier, it has been stated that the opposite party no. 2 is not willing to proceed further in the matter in view of the compromise between the parties and that no case is pending, connecting to the issues involved in the instant case in any court of law and it is requested therein for permission to compound the offence. 8. It would be evident from the foregoing paragraphs that in all the three interlocutory applications, parties are consistent that they have compromised the dispute with the intervention of well wishers and the complainant-opposite party no. 2 by filing his counter-affidavit has stated that he has no longer grievance against the petitioner and that the dispute has been amicably settled and that he would have no objection, if the composition would be accepted by this Court. Contents of the interlocutory applications have been supported on oath by the opposite party no. 2. 9. Heard Mr. Ram Naresh Singh, the learned counsel on behalf of the petitioner, Mr. R.K. Sinha, the learned counsel on behalf of the opposite party no. 2 and Mr. Amitabh, the learned A.P.P. for the State. 10. Contents of the interlocutory applications have been supported on oath by the opposite party no. 2. 9. Heard Mr. Ram Naresh Singh, the learned counsel on behalf of the petitioner, Mr. R.K. Sinha, the learned counsel on behalf of the opposite party no. 2 and Mr. Amitabh, the learned A.P.P. for the State. 10. Law has been laid down by the Supreme Court of India in various decisions by giving guidelines in view of the provisions of composition under Section 147 of the Negotiable Instruments Act, 1881 between the parties. In K.M. Ibrahim vs. K.P. Mohammed and Another, reported in 2010(1) JCR 75(SC), the Supreme Court of India observed. "Once a person is allowed to compound a case as provided for under Section 147 of the Negotiable Instruments Act, the conviction under Section 138 of the said Act should also be set aside. In the case of Vinay Devanna Nayak [ (2008)2 SCC 305 ], the issue was raised and after taking note of the provisions of Section 320, CrPC, this Court held that since the matter had been compromised between the parties and payments had been made in full and final settlement of the dues of the Bank, the appeal deserved to be allowed and the appellant was entitled to acquittal. Consequently, the order of conviction and sentence recorded by all the Courts were set aside and the appellant was acquitted of the charge levelled against him." 11. It was further observed by the Apex Court in the said decision, "It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution. Since the parties have settled their disputes, in keeping with the spirit of Section 147 of the Act, we allow the parties to compound the offence, set aside the judgment of the Courts below and acquit the appellant of the charges against him." 12. It is relevant to mention that in all the interlocutory applications the petitioner as well as the opposite party no. It is relevant to mention that in all the interlocutory applications the petitioner as well as the opposite party no. 2 lender are consistent that they have resolved the dispute and have no longer grievance against each other which could be possible only by the intervention of the well wishers and the friends. The petitioner borrower contended that he has paid Rs.19,500/- at the first instance to the opposite party no. 2 against the receipt on the letter pad issued by the opposite party no. 2. Though it has not been clearly mentioned in the counter-affidavit that opposite party no. 2 has received the entire amount on his full and final settlement but has admitted that the dispute has been resolved and he is not inclined to pursue the matter and at the instance of the opposite party no.2, the petitioner was admitted to bail, during pendency of this criminal revision. Facts have been reiterated in all the three interlocutory applications that the dispute has been resolved and that the complainant-opposite party no. 2 is not inclined to pursue the matter further. Contents of the interlocutory applications have been supported by the petitioner as well as by the opposite party no. 2 and considering the contents of all the petitions, referred to hereinbefore, as also taking into consideration the contents of the counter-affidavit filed on behalf of the opposite party no. 2, I allow the composition of the dispute in view of the provisions under Section 147 of the Negotiable Instruments Act, 1881, consequently, the petitioner is acquitted relying upon the decision of the Apex Court in K.M. Ibrahim vs. K.P. Mohammed and Another (supra) referred to hereinbefore. 13. This criminal revision is accordingly allowed and disposed of and all the three interlocutory applications viz. I.A. No. 2052/10, I.A. No. 2742/10 and I.A. No. 105/11 are also disposed of.