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2012 DIGILAW 1015 (PNJ)

Joginder Arora v. Pankaj Dudeja

2012-08-01

PARAMJEET SINGH

body2012
JUDGMENT Mr. Paramjeet Singh, J.: - Present criminal revision has been preferred by the petitioner – Joginder Arora against judgment dated 19.07.2012 passed by learned Additional Sessions Judge, Faridabad, thereby dismissing the appeal filed by the petitioner against the judgment of conviction dated 10.03.2011 and order of sentence dated 11.03.2011 passed by the learned Judicial Magistrate Ist Class, Faridabad, vide which the petitioner has been convicted for an offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.10,000/-. 2. Brief facts of the case are that criminal complaint No.30 dated 09.04.2011 was filed by the respondent-complainant against the petitioner under Section 138 of the Negotiable Instruments Act with the averments that the accused-petitioner in discharge of his part of liability issued cheque for a sum of Rs.1,00,000/-. Said cheque on presentation for encashment was dishonoured with the remarks “insufficient funds”. Thereafter, the complainant served notice upon the accused, but the accused failed to comply with the notice. After recording preliminary evidence, vide order dated 29.01.2007, the accused-petitioner was summoned under Section 138 of the Negotiable Instruments Act. Finding a prima facie case against the petitioner, notice of accusation was served upon the accusedpetitioner to which the accused-petitioner pleaded not guilty and claimed trial. 3. The complainant, in order to prove his case, examined Om Dutt Sharma, Clerk, Vijaya Bank NIT Faridabad as CW1 and himself as CW2. 4. Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. All incriminating circumstances were put to him. He denied the same and pleaded innocence. 5. The learned Trial Court, after appreciation of the evidence, convicted and sentenced the petitioner as aforesaid vide judgment and order dated 10/11.03.2011. Thereafter, the petitioner preferred an appeal, which was dismissed by the learned Additional Sessions Judge, Faridabad, vide judgment dated 19.07.2012. 6. I have heard the learned counsel for the parties and perused the record. 7. Learned counsel for the parties state that the dispute has been settled amicably. 8. Learned counsel for the respondent, on instructions from the respondent, who are present in Court today, states that the respondent would have no objection, if the present revision is allowed and the petitioner is acquitted in the complaint in question on the basis of compromise. 9. Learned counsel for the parties state that the dispute has been settled amicably. 8. Learned counsel for the respondent, on instructions from the respondent, who are present in Court today, states that the respondent would have no objection, if the present revision is allowed and the petitioner is acquitted in the complaint in question on the basis of compromise. 9. Learned counsel for the respondent has also handed over an affidavit dated 01.08.2012 to the above effect, which is taken on record. 10. Reliance has been placed upon a judgment of the Hon’ble Apex Court in the matter of Damodar S. Prabhu versus Sayed Bablal H., [2010(3) Law Herald (SC) 1874] : reported in 2010(2) R.C.R. (Criminal) 851, wherein the Hon’ble Apex Court has held as under:- “15. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:- THE 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. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate’s Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority.” 11. Consequently, in view of affidavit dated 01.08.2012 and keeping in view the law laid down by the Hon’ble Apex Court in the matter of Damodar S. Prabhu (supra), present revision petition is allowed. Impugned judgments and order of sentence are set aside and criminal complaint filed by the complainant is quashed, subject to deposit of 15% of the cheque amount i.e. Rs.15,000/- with the High Court Legal Services Authority within one month from today and if not paid then same shall be recovered as arrears of land revenue. 12. The petitioner, who is stated to be in custody be released forthwith, if not required in any other case. 13. Learned counsel for the petitioner further states that mother of the petitioner has expired today and prays that copy of the order be given under signatures of the Bench Secretary, so that the petitioner may be got released. Prayer is allowed. 14. Let, a copy of this order be given to the counsel for the petitioner under signatures of the Bench Secretary of this Court. ---------0.B.S.0------------